ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, June 6, 2001

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[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Welcome to the meeting of the day, which is devoted to the legal aspects of Bill C-5. We have limited time, until 5 p.m., and therefore we'd better start. We have a quorum.

On behalf of the members of the committee, I will be glad to welcome Ms. Dawson and Mr. Piragoff, from the Department of Justice.

There is a feeling amongst members of the committee that the interpretation of the constitutional powers of the federal government requires further discussion. There is a document leading to that conclusion, a paper that was published in November 1999 by the Hon. Gérard La Forest, Dale Gibson, and Rangi Jeerakathil, of whom you are probably well aware. There is also the evidence given to this committee by Dale Gibson, which has probably also been brought to your attention, and which Mr. Gibson has put in writing in the form of a paper.

There is, among other things, the warning given to this committee by eminent jurists that if the legislation were to provide for prohibitions to be established by regulation, there is a greater risk that Bill C-5 would be viewed as regulatory rather than criminal, and this is of course an observation that commands attention.

So without further description of the background and the reasons why we're holding this meeting, it might be perhaps better that we start with the officials of the Department of Justice to hear their presentation, which, I understand, is only oral, and then we'll start with a round of questions.

Ms. Mary Dawson (Associate Deputy Minister, Constitutional Affairs, Department of Justice): Thank you. I would like to thank the committee for inviting the Department of Justice to appear before it this afternoon. Perhaps I could make some very brief introductory remarks, and then I believe you do have some questions.

The Department of Justice has been invited to appear before this committee to assist the committee in dealing with general constitutional issues as they may relate to Bill C-5.

The Chair: We are all aware of that.

Ms. Mary Dawson: I hope I can be of assistance by addressing, in a general way, some of the constitutional issues that are of concern to you.

As a government lawyer, my client is the government, not Parliament, but I will try to be as forthcoming as I can. Bill C-5, as currently drafted, has been extensively reviewed by Justice. A wide variety of legal views have been considered by Justice over the past eight years. This has been done either through the receipt of briefs or, in some instances, by face-to-face meetings between those who have provided opinions and a variety of Justice officials. There have been extensive consultations and debate during the course of the various bills over the past decade. We are satisfied that Bill C-5, as it stands, is constitutionally sound.

The issue of jurisdiction over the environment is not a simple straightforward one. It's not surprising that you've heard some conflicting opinions. Environment is not listed as a separate head of jurisdiction under either section 91 or section 92 of the Constitution Act, 1867. To find jurisdiction at either the federal level or the provincial level, it's necessary to identify one or more heads of power under section 91 or 92, as the case may be, to support that jurisdiction. Provincial power might be found under section 92.5, management of public lands within a province, it might be found under section 92.13, property and civil rights, or under section 92.16, matters of a local and private nature.

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Federal powers, on the other hand, may be found under section 91.12, seacoasts and inland fisheries, section 91.1A, the public debt and property, section 91.24, Indians and lands reserved for Indians, section 91.27, the criminal law, or peace, order, and good government in its national dimensions aspect, or under the combined effect of section 132 and the Migratory Birds Convention Act, which is a British Empire treaty.

Just this listing should give a sense of the scope for conflicting argument. There is an element of risk assessment involved in arguing many of the legal opinions in relation to the legislative powers that relate to the environment. This area is simply not black and white.

Bill C-5 provides protection for species at risk. The provisions of the bill apply to all species on federal land, aquatic species, and migratory birds to the extent of the application of the Migratory Birds Convention Act. The federal criminal law power has been utilized to provide for general prohibitions against killing, possession, destruction of residence, and the destruction of critical habitat, not only for species that are managed by the federal government but also those normally managed by the provincial governments. The prohibitions apply when the Governor in Council makes an order. Certain procedures must be followed before the orders are made. In the case of critical habitat, there are more detailed procedural requirements than for the other prohibitions, and this is also the case for areas normally managed by provincial governments.

With those brief remarks, I'd be pleased to try to assist the committee by answering your questions to the best of my ability.

The Chair: Mr. Piragoff, would you like to have any input?

Mr. Donald K. Piragoff (General Counsel, Criminal Law Policy Section, Department of Justice): I have no introductory remarks, Mr. Chair.

The Chair: All right.

Then we can start and open up the discussion. Would you like to go first, Mr. Mills? The floor is yours.

Mr. Bob Mills (Red Deer, Canadian Alliance): Starting off, I'd say I'm sorry the parliamentary secretary isn't here, considering she's the one who wanted the meeting. But anyway we're here.

The questions I would have, first of all—

An hon. member: She's here.

Mr. Bob Mills: You see, I shouldn't have said anything.

Suppose there's a conflict between a province and the federal government in terms of a species. The federal government lists species A, but the province says it's not endangered, that this is in fact its northern range, or whatever. What kinds of legal problems does that enter into? Whose jurisdiction then does that become, and how would it be handled?

Ms. Mary Dawson: As I understand the act, ultimately it's the federal powers that will decide whether they need to invoke an order under these various prohibitions. So if there's a disagreement between the federal government and the province, ultimately after the federal government had heard what the province had to say, they would do what they thought best.

Mr. Bob Mills: Wouldn't that create a horrendous political problem, probably for the endangered species? I think there'd be a tendency for the people of that province to agree with their provincial government, and this could well endanger the species even further.

Ms. Mary Dawson: I think the obligation on the federal government under this legislation is to protect the species, so they'd do the best they could to protect them. I think that's all I can say.

Mr. Bob Mills: Yes, maybe it's where I come from, but the federal government isn't necessarily the most popular government in the world. But I won't go on there.

On the aboriginal issue, where there is consultation with the aboriginal community regarding an endangered species, a concern I would have, because there's so much concern for the aboriginal question in this, is if the species is located on both sides, one in a reserve and one next door, you can handle next door with a big stick, if you have to, to force that landowner to protect that habitat, that species, and so on, but does the government have the same authority to enforce the preservation of that species inside that reservation?

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Ms. Mary Dawson: As I understand it, they do. There are consultation provisions necessary with respect to the aboriginal peoples, but the bottom line is that the same authority is there. The way the act is drafted, there's the same basic authority, as I understand it.

Mr. Bob Mills: So first nations aren't going to dispute that sort of authority?

Ms. Mary Dawson: They may or they may not, but I really can't comment on that; I'm here to answer legal issues. This whole area is a difficult one, and it has to be handled sensitively and carefully.

Mr. Bob Mills: About a third of the bill is devoted to punishment, to the stick approach. From a legal perspective, for some, that would appear to be pretty top heavy in terms of this whole bill being designed for cooperation, consultation, and getting everybody on side. With the fact that those penalties are there—I know they are the worst-case scenarios—do you not think from a legal perspective that makes the bill a little less likely to work?

Ms. Mary Dawson: It was our feeling that the safest constitutional ground for this legislation was the criminal law power.

Mr. Bob Mills: Okay.

We've heard that the mens rea should have been included in the bill or been an important part of the bill. What would you comment about that?

A voice: I think it was clause 100.

Ms. Mary Dawson: This is the issue as to whether it should be mens rea as opposed to a strict liability approach?

Mr. Bob Mills: Yes.

Ms. Mary Dawson: I guess the comment I would have is that outside the Criminal Code, where it's the general rule, but not even in the Criminal Code the exclusive rule, mens rea offences exist. Most federal legislation that's based on the criminal power in fact involves strict liability offences. So this piece of legislation is not unusual in this regard. By way of example, the Canadian Environmental Protection Act also has strict liability offences in it.

In the case of public welfare offences, which are the kinds of offences we have in these acts, it's considered appropriate to shift the burden of proof to the accused, since the accused may be in a better position to explain his actions. But the main point is that it is quite usual for strict liability offences in the statutes outside the Criminal Code that rely on the Criminal Code power.

Mr. Bob Mills: The concern is that it seems it may create less cooperation or less likelihood and in fact further endanger the endangered species.

Ms. Mary Dawson: Actually, I think it's easier to make the case when it's a strict liability offence than when it's a mens rea offence, so I'm not sure I would follow that conclusion.

The Chair: Thank you.

I have the following as indicating a wish to ask questions: Mr. Herron, Mr. Lincoln, Madame Carroll, Mr. Bigras, and then Mr. Comartin—and Mr. Knutson.

Mr. Herron.

Mr. John Herron (Fundy—Royal, PC): Regarding my first question, as you folks are probably aware, there is a divergence of opinion between the perspective that Justice has advised the Government of Canada on, with respect to migratory birds, in particular their residence or habitat, and with respect to Chief Justice La Forest's opinion, and Gibson's opinion as well.

So I would like to state for the record that I think it's imperative, in keeping with the theme we have in the round tables, that we have some kind of a venue, because the officials had essentially stated that they are lawyers for the Government of Canada and not for Parliament, and that's your responsibility. So given that you have a clear solicitor-client thing, my perspective is that I think it's imperative that we have a round table session of that nature to clear that particular issue out.

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I'm not looking for you to capitulate, but do you see that there's some room for a clear divergence of opinion when you have Gibson and La Forest going in one direction compared to where you folks are?

Ms. Mary Dawson: Yes. Would like me to talk a little bit about the Migratory Birds Convention and the issues there?

Mr. John Herron: Yes, and in particular, if you're comfortable with it, about why you think Chief Justice La Forest and Mr. Gibson are wrong.

Ms. Mary Dawson: Okay. Let me just set the stage on the Migratory Birds Convention, just so everybody around the table is on the same wavelength.

The Migratory Birds Convention is what's called a British Empire treaty. Before 1931, Great Britain performed our treaty-making function, but by way of exception, under section 132 of the Constitution, the federal government has the power to implement all aspects of empire treaties.

That's not the usual case, and I think it's important to remember that. The power to implement treaties on cases other than those covered by the British Empire treaties is shared by the federal and the provincial governments, and so it depends on the normal division of powers who implements treaties.

Since the federal authority over migratory birds flows from the Migratory Birds Convention, then we have to look at the convention itself to determine the scope of the authority.

The convention explicitly covers hunting and closed seasons, and the taking of eggs and nests of the migratory birds that are covered by the convention. Those are very specific powers or subjects, and they're very expressly stated. There's absolutely nothing about habitat in the convention. The preamble sets out the background for the convention, that the parties are... It says they are:

...desirous of saving from indiscriminate slaughter and of insuring the preservation of such migratory birds as are either useful to man or are harmless...

We don't think those words in the preamble can be used to support an expansion of the federal jurisdiction beyond the very specific matters that are identified in the convention.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Ms. Dawson, would you mind repeating the last part of—

Ms. Mary Dawson: The quote out of the convention?

Ms. Aileen Carroll: From where you said “We don't think...”

Ms. Mary Dawson: We don't think the words in the preamble can be used to support the expansion of the federal jurisdiction beyond the very specific matters that are identified in the convention, and that's where we basically disagree with the advice.

Mr. John Herron: I have a very short question, just to finish. I think Aileen will probably continue that for me later on.

In 1995, when we studied Bill C-65, Environment Canada did release the constitutional advice it received from Justice on these types of issues. I would presume it is up to Environment Canada to release it, that you can't release that opinion on your own, the constitutional advice you provided to Environment Canada on these very specific things. Is it correct to say that Environment Canada would have to release that, or could we have a copy of the information you've released to the...

Ms. Mary Dawson: Actually, I wasn't aware that you had a copy of a written opinion from us.

Mr. John Herron: It was on Bill C-65.

Ms. Mary Dawson: I wasn't aware of that, but it's quite unusual if you do.

Mr. John Herron: I don't know, maybe it was because what happened during that debate was contentious and these same questions were raised at that time. I might ask and refer to the people who were at the committee at that time.

Thanks, Mr. Chair.

The Chair: Are you sure you have a copy of that?

Mr. John Herron: I'm reading from one of my learned researchers:

In 1995, Environment Canada did release the constitutional advice it received from Justice concerning the predecessor to this bill, Bill C-65. That advice was made available to the committee and to the interested members of the public.

That's the information I have. If I'm wrong, then you'll be proven right.

Ms. Mary Dawson: Perhaps it was given in a general way, orally. I would be surprised if you received the written advice.

The Chair: Thank you.

Mr. Lincoln, please, followed by Madame Carroll.

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Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): If you go back to the Migratory Birds Convention Act, the act refers in two places to “protection for birds and nests and for the control and management of those areas”. Then in the regulations it says:

no person shall deposit, or permit to be deposited, oil, oil wastes

—etc.—

harmful to migratory birds in any waters or any area frequented by migratory birds.

What in your view is the definition of “area”, if it's not habitat, if it's the general area they frequent? That's specifically referred to in the act and the regulations.

Ms. Mary Dawson: I'm not an expert in this environmental act. I'm coming as a general constitutional adviser and I do not have a hands-on knowledge of all the aspects of this.

Listening to the words you are saying, “habitat” is a very broad word. Different people might think it means different things. I believe there is room in the legislation, made under the Migratory Birds Convention Act, to facilitate the achievement of the specific objectives put in the convention, such as the protection of the nests and the eggs. So there's certain flexibility in the federal legislation that would be enacted in relation to that convention to allow what's necessary to protect those nests and those eggs.

It's a question of the extent to which one goes beyond the focus of the convention.

Mr. Clifford Lincoln: Exactly. If you want to go beyond the area of the specific nest and the egg itself, and you talk about an area that covers the nest and the egg, generally speaking, that's what they call “habitat”. In fact, in the U.S. they've specifically interpreted the convention on their side in these areas to be habitats.

If you talk about the Fisheries Act, section 36, it's exactly the same. If you deposit something in the waters that's harmful to fish, automatically there's a reverse onus of proof that the fish have been harmed, because it covers the habitat. We know that fish spawn here, but they float everywhere, they swim everywhere, so it's habitat.

So how can we say, on one side, that we protect both the nest and the eggs in the bill, which follows the convention, and the area surrounding that is for the protection of the birds and the eggs, and yet say in this particular instance that no, we have to stick to the nest itself? Is that a contradiction or is the convention act going beyond its scope?

Ms. Mary Dawson: On the last question, I really can't comment because I haven't studied that act, but it sounds to me, from what you read, that it's not as broad as the common understanding of “habitat”, which I understand also includes, for example, landing spots. It could include all kinds of things, and I'm not an expert in this area.

The other comment I should perhaps add is that the American precedents aren't necessarily applicable to Canada, because I suspect that the federal government has powers in the United States for the implementation of treaties. In fact, I'm fairly sure of that. It's quite a different situation in the United States from Canada.

Mr. Clifford Lincoln: Except that in the case of Judge La Forest—and he's the person who ruled on Oldman River Dam, and he's the recognized authority in the constitutional field in the area of jurisdiction for environmental purposes. He says quite clearly in his opinion that in the convention when they mention area, the law really interprets area, and going beyond that, as habitat.

So there's a dichotomy between the Department of Justice, which looks at it in a very narrow sense, and Judge La Forest and Mr. Gibson, who say no, it's much broader than what you say. So really it's purely a matter of appreciation of something where you want to take the most restricted opinion... and they take an opinion that, oddly enough, is very much the same way as the United States. I realize the law in the United States is not the same as ours.

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At the same time, when they look at the convention they look at area as being habitat. We seem to always fall back on the most restrictive definition. Why are we so scared? Is it because we're so scared of the provincial political scene that we are afraid of saying, let's take the broader rather than the most restrictive opinion?

Ms. Mary Dawson: I think the bill has taken a particular approach to covering this area that we think is constitutionally sound and that does the job. I think that's the answer to your question probably.

Mr. Clifford Lincoln: But could the other definition be just as sound from another perspective? It's a perspective of the justice ministry that this is sound, but could Justice La Forest's opinion also be sound from his perspective?

Ms. Mary Dawson: I think the comment to make is the one that I made in my introductory remarks. This is an extremely complex area and it's an area where all sorts of reasonable people disagree with each other. It's an area for which, if you take a look at the Supreme Court judgments, there are five to four majority decisions. And I don't know which side Mr. Justice La Forest was on in some of these. He could have been on the dissent or he could have been in the majority.

It's simply not an area where there's a hard and fast rule. There is a judgment call, and what you have to apply in this area is a risk assessment basically as to which is the safest way to go in legislation and how much risk you're willing to bear. I think it's quite evident that in an area as evolving and as uncertain as this one, there will be disagreements of eminent people on both sides.

The Chair: Thank you, Mr. Lincoln. We'll go to a second round. We have Madame Carroll suivie par M. Bigras, and Mr. Comartin, Mr. Knutson, and Madame Redman.

Madame Carroll.

Ms. Aileen Carroll: Thank you, Mr. Chair.

Ms. Dawson, I hope I'm not driving you crazy, but I tried to jot down that last sentence, which starts with “We don't think the preamble...” Can you give me the rest of that. It was the last sentence when you were speaking. I need that, because I think it's key to the question I want to ask.

Ms. Mary Dawson: I'm not sure exactly what I said, but we don't think the preamble—

Ms. Aileen Carroll: I think you referred to your written notes, so...

Ms. Mary Dawson: I'm not sure which ones. But basically we don't think the preamble would support an interpretation of the act that would take it dramatically beyond the substantive provisions, particularly when the substantive provisions are so specific. The substantive provisions as opposed to the... Do you understand the distinction?

Ms. Aileen Carroll: Yes. Then you referred to yourself as a general constitutional adviser, in your language again. But what I'm struggling with is that the members of your department have come and very clearly said that they are not going to go with the judgments as rendered by Justices La Forest and Gibson twice. They are considered, as I think we would all agree, to be reasonable people—I think you put that very well—and as authorities in the field, Supreme Court authorities, who rendered decisions here.

You know why we've asked you back, but in a very almost peremptory way, it was dismissive in saying, “We're not going there.” So I need to ask you to explain to us what your authorities are for not going there. You and I know that in the work of judicial interpretation, he who can quote the most authorities often wins.

We are feeling a high comfort level with the analysis and decisions rendered by Justices La Forest and Gibson, but I'm not hearing you come back and say, right, but here's the work on this problem, here are our authorities, and this is where our jurisprudence takes us. If you could share this with me, I think I would agree with you we need to accept that reasonable minds differ reasonably, and I'd be content with this. Can you help me with this?

Ms. Mary Dawson: There were a couple of issues we're in disagreement with Mr. Justice La Forest and Mr. Gibson on, and I could address one or both of those issues—

Ms. Aileen Carroll: Please do it.

Ms. Mary Dawson: One of them is the peace, order, and good government issue and the other is the extent of application of the migratory birds issue. Would you like me to address each of them?

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Ms. Aileen Carroll: I would like you to... I hate to be picky, Ms. Dawson, but as much as I respect your position and your legal mind, I want you to give me your authority. I want to hear not just how you feel at any given time, but your authorities for difference.

Ms. Mary Dawson: Okay. What I would prefer to do is focus on specific issues because I can't quote you chapter and verse exactly what Mr. Justice La Forest said. This is not meant to be an in-depth legal assessment. It's meant to be a general briefing, but I can tell you that if—

The Chair: No, I'm sorry, Ms. Dawson, but this is not intended to be a general briefing.

Ms. Mary Dawson: I'm sorry, that was a slip of the tongue. I mean an explanation of our general legal opinion without getting into long opinions that we're comparing word by word. But I'm quite—

Ms. Aileen Carroll: But, Ms. Dawson, you are advising the Minister of the Environment. You are his solicitor and he is your client, and you are advising him to put within this act a totally different interpretation than the interpretation you are hearing us refer to. Surely when you advise him to do that—you meaning the Department of Justice—you have done that by giving him considerable legal precedent—

Ms. Mary Dawson: No, I'm—

Ms. Aileen Carroll: —to move in a direction that is not commonly held to be valid.

Ms. Mary Dawson: No, I'm sorry. We're not in this legislation doing anything on the face of the legislation that contradicts the opinion of these individuals. What we're doing is taking a different approach by using the criminal law power, because we think it's a safer approach from a legal risk point of view.

You asked what the authorities were. The authorities, generally speaking, are the cases in the last 10 or 15 years. There are two or three key cases that discuss in some detail the national dimensions test for the peace, order, and good government issue. I could talk a little bit further on that, if you wish, in a minute.

With respect to the Migratory Birds Convention Act, that is a question of statutory interpretation, and we actually feel quite strongly that it's going very far to suggest from the two or three specific instances that are in that convention that there is a broad federal power generally with respect to habitat. Our authorities are the case law over the last 10 or 15 years.

The Chair: All right. You have one more question.

Ms. Aileen Carroll: Thank you.

I guess I do need to quote. In order to come here and feel that I was using your time usefully and not wasting your time, Ms. Dawson, I guess I, like many members, did some homework, and we did read some law. It is particularly with the criminal law power that Messrs. Justice La Forest and Gibson rested their case, and I'm going to say just what was said:

It is abundantly clear that Parliament could under its Criminal Law power alone, pass comprehensive legislation which contains general prohibitions and provides for limited exemptions, addressing protection for all endangered and threatened species and their habitat. The exemptions could be similar to those contained in the Food and Drugs Act, the Firearms Act, or the Canadian Environmental Protection Act, and the criteria should be specified to limit the exemption-granting discretion. Such legislation would meet all of the requirements for a valid exercise of the Criminal Law power, namely: a prohibition coupled with a penalty, directed towards protection of the environment, which is a valid, non-colourable Criminal Law purpose. However, if the legislation were to provide for prohibitions to be established by regulation there is a greater risk that the Act would be viewed as regulatory rather than Criminal. The safer approach, then, would seem to be to include the prohibitions in the statute itself.

They are using the criminal law power.

Ms. Mary Dawson: But the prohibitions are in the statute itself. It's very important to clarify which issue we're talking about, and there are a number of very different issues that sound the same in this piece of legislation. The fact of the matter is that the prohibitions are very clearly stated, with respect to both provincial lands and federal lands, in the legislation. It's deliberately so. As a matter of fact, we've been particularly careful not to go beyond prohibitions in the exercise of our criminal power, because if we do that, then we run the risk—as actually seems to be expressed here—of getting into a regulation mode. That's when you would have to make the arguments on the basis of the peace, order, and good government power and the national dimensions, which we haven't spoken about yet. But there is an area of disagreement there as well, I believe.

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Ms. Aileen Carroll: Thank you, Mr. Chair.

The Chair: We now come to the second round.

Monsieur Bigras, Mr. Comartin, Mr. Knutson, Madam Redman.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Thank you, Mr. Chairman.

First of all, I'm going to ask a very simple question and I'm hoping for a simple and clear answer. My first question is as follows: do you feel that habitat protection comes under federal or provincial jurisdiction?

[English]

Ms. Mary Dawson: Generally speaking, it depends on how you go about exercising the protection. If we were trying to use a general—

[Translation]

Mr. Bernard Bigras: Mr. Chairman, I would like to have a clear answer. Is habitat protection a provincial matter?

[English]

Ms. Mary Dawson: My answer is: it depends on how the legislation is drafted. Generally speaking, it is a provincial responsibility, but there is a way for us to deal with these issues federally under the criminal law power.

Mr. Donald Piragoff: Let me answer the question with another example. Are highways provincial jurisdiction or are highways federal jurisdiction? You can't give a simple answer that the highways, or control of traffic on the highway, is either provincial or federal jurisdiction, because depending on the nature of the conduct, and depending on what the legislation is trying to do, it may be federal jurisdiction or it may be provincial. If we're talking about impaired driving on the highway, an activity that is of concern to the public welfare, then the federal government has the right to use the criminal law power, even if that involves determining what happens on provincial highways.

Nevertheless, the province is permitted under the Constitution to regulate things like speed limits, that the lights must be a certain intensity in the front, or that you have to have red lights in the back of the car. The federal government doesn't get involved, necessarily, in highway traffic matters. What it does in its criminal law power is say that there are certain types of conduct or certain situations where it can also regulate in an area. So both the provincial and the federal governments can regulate highway traffic. They can also regulate in the area of the environment.

What one can do in those particular areas depends on, as Ms. Dawson said, exactly what they intend to do and how they go about doing it. Are they trying to prohibit or are they trying to regulate? Those are some of the limitations. It's not a clear black and white answer, like in so many other areas of shared responsibility between the two levels of government.

[Translation]

Mr. Bernard Bigras: Then, Mr. Chairman, I would like someone to explain the constitutional rationale for me. Ms. Dawson has just said that, generally speaking, habitat protection comes under provincial jurisdiction. Could you explain the constitutional rationale? Under the double safety net and the legislation, the federal government may intervene on land that does not come under its jurisdiction, whereas it doesn't even use an authority recognized by the provinces, namely, the Migratory Birds Convention Act, which is a federal responsibility, and it doesn't even dare enforce this piece of legislation in its jurisdiction. Moreover, it is about to meddle in provincial matters.

I would like someone to explain this constitutional rationale to me because I do not understand it. In sectors that do come under its jurisdiction, the federal government does not assume its responsibilities, whereas in matters that come under provincial jurisdiction, it intervenes. If there is some kind of logic here, I would like you to explain it to me because I do not understand it.

[English]

Ms. Mary Dawson: This bill has attempted to be as cooperative and deferential to provincial powers as possible. The federal government has taken a responsibility in environmental matters. As I understand it, the cooperation is very good between the federal government and the provinces in this area, but the legislation does have the capacity for the federal government, in relation to the offences, to act if there is a feeling that the provincial legislation doesn't adequately cover the problem. It is not necessarily the expectation that this will have to happen. The power is in the legislation, but it is drafted in a way that is quite deferential to the provincial governments.

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[Translation]

Mr. Bernard Bigras: I have another question, Mr. Chairman.

Some witnesses who have appeared before us have reminded the committee that under the James Bay and Northern Quebec Agreement, certain lands have been designated as lands under federal jurisdiction whereas others have been designated as lands coming under provincial jurisdiction.

How do you see this agreement applying and what would you say today to the Inuit communities who signed the James Bay Agreement? What would you tell them? Will this act apply to the lands that come under provincial jurisdiction despite the James Bay and Northern Quebec Agreement that was signed?

[English]

Ms. Mary Dawson: I can't comment on the technicalities of how that would work out. All I can say is that the federal government is exercising its criminal power, and to the extent it can exercise that power, there is the capacity to do so in this legislation. But I really can't parse the way it's going to work in the case of James Bay.

[Translation]

Mr. Bernard Bigras: I have a final question. If I understand the logic of what you just said two or three minutes ago, in theory, the federal legislation should apply to lands under provincial jurisdiction as defined in the James Bay Agreement. If this federal act applies to provincial land other than that covered by the agreement, it can clearly apply to lands that are clearly defined in the James Bay Agreement. The same logic applies.

[English]

Ms. Mary Dawson: I really can't answer that.

A voice: Check with Lucien Bouchard when he was minister—

The Chair: Merci, Monsieur Bigras.

[Translation]

A Voice: It is not obvious that you were once the Quebec Minister of the Environment, although it is true that you were no longer there at that time.

[English]

The Chair: Next is Mr. Comartin, followed by Mr. Knutson.

Mr. Joe Comartin (Windsor—St. Clair, NDP): Thank you, Mr. Chair.

I want to go back to the opinion. I'm assuming you're treating that opinion as being the property of the environment department.

Ms. Mary Dawson: Which opinion is that?

Mr. Joe Comartin: The opinion you rendered on this bill, your advice.

Ms. Mary Dawson: It is a government concern what happens to that opinion.

Mr. Joe Comartin: So it's not your decision. In this particular case it's up to the Minister of the Environment as to whether or not it's released.

Ms. Mary Dawson: It is the Minister of the Environment to whom the request has been made, but the Minister of the Environment will, I'm sure, consult within the government in making his decision.

Mr. Joe Comartin: The point I'm trying to get at is that the ultimate decision is made at that level, not at your level. It's made at the cabinet level, not at the level of your department.

Ms. Mary Dawson: Yes, that's probably fair to say.

Mr. Joe Comartin: Thank you.

A voice: It might be the Prime Minister—

Mr. Joe Comartin: It may very well be, or maybe we can get Mr. Marchi to come back and give it to us this time.

I want to follow up on the point Mr. Lincoln was trying to get at with regard to the whole issue of habitat and the right of the federal government to legislate in that area. He quoted to you some of the sections of the Migratory Birds Convention Act. There's similar wording in the Fisheries Act, and there have been four or five decisions under that act that recognize that the federal government has the right to legislate in that area. Is that not enough precedent to say that Mr. Justice La Forest's opinion and Mr. Gibson's opinion are valid and that the federal government does have the right to legislate on habitat?

Ms. Mary Dawson: I think it's important to understand that fisheries is a federal power, whereas natural resources and wildlife are provincial powers. We can do anything in the fisheries area because the whole area is within federal jurisdiction. That's the difference.

Mr. Joe Comartin: But some of that land is clearly under provincial authority.

Ms. Mary Dawson: I'm really not sure of the details.

Mr. Joe Comartin: It is. The provinces have some authority over the land under their property and civil rights category.

Ms. Mary Dawson: But we have authority over fisheries, so if legislation was directed toward fisheries, it would be federal.

Mr. Joe Comartin: You have authority over migratory birds as well under the convention.

Ms. Mary Dawson: But not to the same extent as fisheries.

Mr. Joe Comartin: The wording is exactly the same.

Ms. Mary Dawson: The wording of what?

Mr. Joe Comartin: The wording in the Fisheries Act in terms of their right to protect the habitat for the fish, which Mr. Lincoln quoted, is almost exactly the same as what's in the migratory convention.

Ms. Mary Dawson: There's quite a difference in the base of our power under the migratory convention and fisheries. Under fisheries we have a plenary power to do whatever we want in relation to fisheries. Under the Migratory Birds Convention Act we have the power to implement the treaty.

• 1625

You have to look at the terms of the treaty to understand what the treaty deals with. The treaty deals very specifically with nests, eggs, and a few other things, but there isn't a general power over migratory birds.

Mr. Joe Comartin: The government has no authority beyond what's in the Fisheries Act and the Migratory Birds Convention Act.

Ms. Mary Dawson: Don't confuse the Migratory Birds Convention, which is an international treaty, with our act. The wording may well be identical, but the base of the authority is different.

Mr. Joe Comartin: They both have similar wording, and there have been five decisions under the Fisheries Act saying that the federal government has the right to legislate habitat protection. That's what those five cases were about. You're saying that's not a good enough precedent.

Ms. Mary Dawson: No, not at all. Our fisheries power is in the Constitution, but our migratory birds power is not in the Constitution. It's only by exception that we have the power to deal with the stuff that's covered by the Migratory Birds Convention. It's quite a different base of power.

Mr. Joe Comartin: I have one more question, Mr. Chair. Your department gave an opinion on CEPA back in 1987, which recommended a more cautious approach. That opinion was ignored. Legislation was passed. This has to do with the definition of toxic substance. In spite of your opinion and the issue going all the way to the Supreme Court of Canada, the reality is that in the Hydro-Québec case that court ruled in favour of the legislation. Is that correct?

Ms. Mary Dawson: I don't know about some of those facts.

Mr. Joe Comartin: Can you tell me the name of the individual in the department who gave the advice?

Ms. Mary Dawson: In 1987?

Mr. Joe Comartin: No, on this bill.

Ms. Mary Dawson: I think quite a number of individuals were involved in preparing the advice, and I couldn't give you the names.

Mr. Joe Comartin: In terms of the position the department has taken, does policy enter into that at all? For instance, is a desire on the part of the federal government to cooperate with the provinces taken into account when advice is given?

Ms. Mary Dawson: No, except to the extent that if a client came to us and said, we'd like to do something and we'd like to do it in a way that is relatively risk free, we would use our legal resources to advise them as to what the best way of doing that might be.

Mr. Joe Comartin: With regard to this bill, were you asked to take the issue of provincial-federal relations into account in giving your advice?

Ms. Mary Dawson: I was not involved, so I can't say. Certainly, the legal advice that was given would be clean legal advice.

The Chair: Mr. Comartin, your time is up.

On a couple of occasions this afternoon Ms. Dawson indicated that this legislation was written in terms of attempting to be deferential to the provinces. That is a very delicate way of conveying an answer to what you were just asking, it seems to me.

Next is Mr. Knutson.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Thank you very much, Mr. Chairman.

Madam Dawson, from my point of view, this last point really is the issue. As you've stated, this bill has been drafted to defer to provincial authority. Clearly, it's the view of the Canadian Wildlife Service that we should defer to provincial authority.

Some members of Parliament, perhaps those from Mike Harris' Ontario, believe the provincial Ministry of Natural Resources, having gone through cuts in the last few years, isn't going to do the job that perhaps needs to be done in terms of dealing with extinction. That's my view.

Where the legal issue comes into play is when I raise these concerns and then people say to me, if you amend the act, you're going to risk it being struck down by the Supreme Court of Canada.

• 1630

The point is not so much what's in the Migratory Birds Convention Act and how far it goes, but whether there is reasonable authority for us to amend the act and still have it stand a provincial lawsuit. That, to me, is the issue.

Let me ask you a specific question. With the last bill, Bill C-65, the committee amended it to instruct the minister that they shall make regulations affecting habitat within areas of federal jurisdiction. That amendment was approved by Parliament at report stage. It was not deleted by the government. So presumably, the justice department at that point and still today would say, we have the authority to protect habitat within areas of... We could put an amendment in this legislation to protect habitat within areas of federal jurisdiction.

Ms. Mary Dawson: Areas of federal jurisdiction?

Mr. Gar Knutson: Yes, such as parks, such as north of sixty.

Ms. Mary Dawson: Federal lands. Yes, we have plenary authority over those areas, like fisheries and federal lands.

Mr. Gar Knutson: That's not an issue.

Ms. Mary Dawson: Our authority for species protection on federal lands is not an issue.

Mr. Gar Knutson: Do you think, when we focus on the issue of extinction, not habitat protection generally, there's a reasonable argument that to do something or to wipe out habitat so as to cause a species to become extinct could be made a crime with penalties everywhere in the country?

Ms. Mary Dawson: Yes. Our criminal law power is quite extensive.

Mr. Gar Knutson: So is there any reason to believe the Supreme Court would tell the federal government, as long as you're dealing with areas of extinction, preventing extinction, which is what this bill is about, this is such a serious issue that we're going to allow you to pass law to protect habitat, in order to prevent extinction everywhere in the country?

Ms. Mary Dawson: No, that's a different issue. That's not a criminal power. You're now talking about a regulatory power to protect habitat?

Mr. Gar Knutson: I didn't say regulated. I didn't use the word “regulation”.

Ms. Mary Dawson: No, but you said, make a law to protect habitat, and I don't know what kind of law you're talking about.

Mr. Gar Knutson: Make it a criminal law. If you drain a swampland and you cause the last two birds of a particular species to become extinct, you've committed a crime.

Ms. Mary Dawson: It's very dangerous to give legal advice off the top in a general way.

Mr. Gar Knutson: I just asked if it's a reasonable argument.

Ms. Mary Dawson: Certainly, if there's a public purpose in creating a criminal law, then we can create a criminal law.

Mr. Gar Knutson: Okay. So I could protect habitat to prevent extinction under the criminal law part. There's a reasonable argument that if we amended this bill to protect habitat, the courts, because the purpose of it is to prevent extinction... It's not to collect fees or to do other things that are normally regulatory, but it's to prevent extinction.

Ms. Mary Dawson: But the devil is very much in the details. One would have to look at how you wanted to go about that.

Mr. Gar Knutson: Let me read to you from Professor Hogg—would you accept him as an authority on the constitutional law?

Ms. Mary Dawson: Yes, he's a pretty good authority—not always right, but generally right.

Mr. Gar Knutson: He says in the Quebec Hydro case that:

...the Act was upheld as a criminal law, and the trend of the modern cases to permit an extensive degree of regulation under the criminal-law power was emphatically reinforced.

That's what he said on the Quebec Hydro case. My question is, does the Quebec Hydro case give me more certainty that I could pass endangered species legislation that maybe provokes the provinces and maybe isn't so cooperative in spirit, but is still constitutionally sound?

Ms. Mary Dawson: Under the criminal law power?

Mr. Gar Knutson: Yes.

• 1635

Ms. Mary Dawson: Yes.

Mr. Gar Knutson: I'm not sure what the problem is, then. Is it your view that as long as we craft the legislation under the criminal law power, we can do pretty much what we want?

Ms. Mary Dawson: Yes. But there's... Well, no.

Mr. Gar Knutson: Yes?

Ms. Mary Dawson: Sorry. As you long as you craft it under the criminal law power—that is the operative notion. You have to be very careful when you're crafting a criminal provision not to go beyond what would be characterized as criminal law. You can't invade provincial jurisdiction by regulating. So there's a judgment call as to how far you can go, and it's not particularly far in most cases.

Mr. Gar Knutson: Hogg says it's an extensive degree of regulation. That's what he says on page 18.11 of the loose-leaf binder version of this book.

Ms. Mary Dawson: That we could go a fair way in regulating under the criminal law power. He may well have said that—

Mr. Gar Knutson: He says “the trend of modern cases to permit an extensive degree of regulation under the criminal law power”.

Ms. Mary Dawson: That's an authority to that effect.

Mr. Gar Knutson: Do you accept that?

Ms. Mary Dawson: I'm not sure if I would accept that, as a matter of fact.

Mr. Gar Knutson: But you would agree that it's a reasonable argument.

Ms. Mary Dawson: Mr. Hogg is an eminent constitutional authority, but as I said, we do not always agree with everything he concludes, particularly when it's not a reporting of what the case says, but rather a surmise, which I suggest this is.

Mr. Gar Knutson: He's talking about a trend in—

Ms. Mary Dawson: Yes. That's his interpretation of the trend. I really haven't studied that statement. We would certainly say that whereas you can set out prohibitions, there is a definite limit on the extent to which you can surround those prohibitions with regulatory aspects when you are in an area that would otherwise be provincial.

The Chair: Thank you, Mr. Knutson.

Madam Redman, please.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chairperson. I actually have three questions, so I'd ask to go on the second round, if I don't get in under the wire.

Several witnesses have expressed real concern at what they perceive as really high levels of fines under Bill C-5. I've repeatedly stated and asked for clarification that these are actually maximum guides for judges. It's not likely that a small woodlot owner who inadvertently killed a species will receive a $250,000 fine. Can you explain the justification for these levels and how they compare with existing legislation?

Ms. Mary Dawson: My understanding is that they are the same sorts of levels as in other similar legislation, including environmental legislation. I could perhaps turn to Mr. Piragoff, who may want to add something on that question.

Mr. Donald Piragoff: Maximum penalties are put in to indicate the worst-case scenario, the outside limit guide. Courts do not generally impose maximum penalties. They are there for the most egregious case. Mostly the courts never get to the most egregious case, but there is a range of penalties, so that the law would apply to small cases, like, as you said, the small woodlot owner killing an endangered species, up to situations where a corporation was very wilful, knew what it was doing, but decided to pollute the water for purposes of profit—it cared more about profit than killing fish or endangered species, it was not simply an accident, it was a question of negligence, a calculated and wilful decision on its part. Those are two different fact situations. The court would look at the situations, the facts, the level of moral culpability, the consequences, and would fashion a penalty appropriate to the facts.

The purpose of penalties is to do a number of things. One is, of course, punishment. It's also deterrence, so others will not do the same thing or the individual will not do the same thing. Of course, that is a question of being flexible and proportionate to the degree of seriousness of the violation, the circumstances of the offender. That's why there's a range. All federal legislation provides a large range. In fact, there are no maximums in the Criminal Code for fines; they're unlimited. The department has left it to the courts to go as high as the courts feel is appropriate.

• 1640

In other pieces of legislation, generally there has been a limit set—as you mentioned, 250,000 or 50,000. Usually, in other pieces of legislation, Parliament tries to put some type of a limit, and it looks sometimes like it's very broad. I know that in the situation with the Copyright Act, there's a $1 million fine. People were really concerned that we're talking about a $1 million fine for copyright violation, but if you look at the Criminal Code provision, there's actually no maximum fine whatsoever. So it's relative, depending on the circumstances.

Mrs. Karen Redman: Thank you. There is another view that's been expressed by some critics of Bill C-5, and I think of the Sierra Club of Canada as one. They've stated that the use of the criminal law power on a discretionary basis for the safety net approach to general prohibitions may result in the bill being challenged on constitutional grounds. I'm wondering if you can just respond to that concern.

The Chair: Could we have a brief answer, please?

Ms. Mary Dawson: The legislation provides for additional procedures in relation to species in areas that are not on federal lands, particularly in relation to the prohibitions that are directed to critical habitat.

An additional process before invoking a law doesn't negate in any way our powers, nor is there any doubt that Parliament can establish different procedures for different situations in criminal or other enactments. Furthermore, there's no need to exercise the full extent of our power in order to retain our power, so the safety net approach doesn't undermine, as far as we're concerned, the use of our powers in any way.

The Chair: Thank you. We'll quickly have a brief question from the chair, and then we'll start a very fast second round.

Ms. Dawson, in this division of powers between the federal and the provincial levels, would you agree with the statement that the federal government is considered by many, if not most, constitutional experts to have the upper hand?

Ms. Mary Dawson: The upper hand? In what regard?

The Chair: With regard to powers.

Ms. Mary Dawson: That's a very broad statement. We have, in theory, the residual power under peace, order, and good government in section 91. In fact, the property and civil rights power in section 92.13 has been treated in many ways like a residual power. So it depends on your perspective and what area you're looking in.

The Chair: So, by and large...

Ms. Mary Dawson: By and large, we have in some circumstances the federal capacity to supersede provincial legislation.

The Chair: Thank you. Would you agree with La Forest when he writes “if the legislation”—namely, the legislation before us—“were to provide for prohibitions to be established by regulation there is a greater risk that the Act would be viewed as regulatory rather than Criminal. The safer approach, then, would seem to be to include the prohibitions in the statute itself”?

Ms. Mary Dawson: I think that's a good observation. I think that's what we've done.

The Chair: And do you feel that has been achieved in this legislation? Yes?

Ms. Mary Dawson: Yes, as far as I know. Again, I'm not a fundamental expert on this legislation.

The Chair: Finally, the prohibition against the destruction of critical habitat under subclause 61(1) would not take effect unless critical habitat were specified under subclause 61(2). Would this prohibition be on safer ground constitutionally if it applied to the critical habitat of all listed species?

Ms. Mary Dawson: I don't believe so. I think there's no problem created by the mechanism in subclause 61(2).

The Chair: Thank you. We start the second round, one minute each, or possibly two. Mr. Forseth is first.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance): Thank you, Mr. Chair.

I'll need more than that, but...

In relation to this specific bill, perhaps you can comment more generally. Do you see any shift in any way of the margin of the division of powers? Does the bill break any new ground on the division of powers topic? Does it shift the margin in any way? Are we going in any new direction here?

Ms. Mary Dawson: I think the bill does not have any serious risks in it. We're relying on our criminal law power in large measure, so I would say I don't think there are serious shifts.

• 1645

Mr. Paul Forseth: Serious shifts... but you're contemplating that there may be a shift?

Ms. Mary Dawson: No, I'm not, really. I don't know the detail of this legislation in sufficient depth to really make that kind of a judgment. But generally speaking, I think we're well within our constitutional powers.

Mr. Paul Forseth: I have a part A and a part B. Part A is that, at the outset, you mentioned that the client relationship was with the government rather than Parliament. I'm just wondering how that has affected the comprehensiveness of your evidence today. Your introductory comments were very brief, but in full view of your advanced knowledge of the concerns that have been raised at committee, you came here knowledgeable. That's my part A, which I'd ask you to comment on.

The part B, again, is trying to get at this constitutional power thing. If there was a constitutional concern of jurisdiction advanced in reaction to the bill by a province, can you identify which sections are likely to give trouble, and what are your thoughts to resolve it?

What examples are there in the bill that give that kind of constitutional challenge drafting... “preventive care was taken”, I think, were the words you used. You also talked about it being risk-free, so certainly that whole topic has been looked at. I'm looking for your comments about how it is indeed risk-free. Where and how did you accomplish it?

Ms. Mary Dawson: Well, I'm beginning to sound like a broken record, but we accomplished it by focusing on the criminal law power in our approach to this legislation.

Mr. Paul Forseth: Okay. Then maybe I'll just ask this one supplemental question. Maybe what we should do is just simply have a small bill that amends the Criminal Code, which could satisfy a lot of concerns, instead of getting into this big constitutional tangle. Because there are sections about killing animals and so on—I forget the section in the Criminal Code that's there now. Maybe one or two words in that might be the simple way to accomplish some objective.

Ms. Mary Dawson: We think the bill accomplishes the objectives.

Mr. Paul Forseth: I guess the reason why we're going around here is that I anticipate that the committee may want to amend this bill to make it stronger. But if they're going to do so, they don't want to be going down a road that's going to cause a constitutional problem or that's going to cause the department to start giving all kinds of contrary advice back to the ministry, and where we get into a whole tangle.

If the committee is anticipating that they would like to make the bill a lot stronger, they want to make sure they're doing it in a proper constitutional manner.

Ms. Mary Dawson: Your area of difficulty is if you attempt to regulate rather than rely only on the criminal law power. You've not asked me whether there's the capacity to enact legislation, for example, under the peace, order, and good government power, and I think there may be some disagreement in those areas.

We feel that the peace, order, and good government power is not available for this kind of legislation because what you'd be arguing is the national dimensions test, and we feel the national dimensions test is a very circumscribed test, which I could go into in some detail if you want me to. Basically we feel this is not a road to go down. That may be where difficulties would arise if one attempted to go into a deeper level of regulation, which is a problem if you're relying on the criminal law power.

The Chair: Thank you.

I'm sorry. We have seven minutes left and six members who want to ask a question. Mr. Forseth was technically on his first round, so it was only fair to allow for more time. But can I now ask members to ask brief questions so that each takes no more than two minutes?

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, I will try to be quite clear. As a result of our discussions which have brought forward some new aspects, including the point raised by Mr. Knutson, do you not acknowledge that, essentially, in the Hydro Québec case, with respect to the case law provided for in the legislation framework allowing the federal government to have recourse to its criminal power and to use the double safety net, the application of this act goes well beyond Crown lands and also covers all territories belonging to the provinces? Are we not running the risk of having, at the end of the day, a situation where only one jurisdiction, namely that of the federal government, will exist, and one where the provinces, for all intents and purposes, will no longer exist?

• 1650

I understand that this is the situation as set forth in our Constitution, that this is the reality. But is there not a trend to ensure that there is only one jurisdiction, namely, the federal jurisdiction?

Furthermore, I would like to understand the scope of your opinions. Was the objective to confirm federal authority in this area or was it to verify the authority of the federal government in a situation where provinces too have responsibilities?

[English]

The Chair: You have one minute.

Ms. Mary Dawson: I'm not sure I have the whole gist there, but basically, what this legislation does is attempt to achieve some environmental protection for endangered species. It is being done through the criminal law power because that is the easiest, recognized, most direct, unchallengeable way to do it. I don't think there's an aspect in which we are interfering with provincial jurisdiction. The bill, as I said before, recognizes some jurisdiction for the provinces, but it gives the federal government the power to invoke the orders if it feels it's necessary to do so.

The Chair: Mr. Comartin.

Mr. Joe Comartin: I have a couple of quick ones.

Mr. Herron suggested a round table in the fall. Given both the complexity of the issue and the contrary opinions we're getting and advice we're hearing, would you have any objection to reappearing at that time?

Ms. Mary Dawson: I don't think it's my decision on whether there should be a round table. I think you'd have to go to the department.

The Chair: It is a decision for the committee, not for the Department of Justice.

Mr. Joe Comartin: Thank you, Mr. Chair.

Did the department seek any outside opinions, or was the advice they gave on this bill entirely generated from within the department?

Ms. Mary Dawson: I'm not sure.

Mr. Joe Comartin: Could you determine that and let the committee know?

Ms. Mary Dawson: Yes.

Mr. Joe Comartin: Advise us if that came from an outside law firm.

Ms. Mary Dawson: Yes, we could do that.

Mr. Joe Comartin: Finally, are you aware of any opinions in the country, from people like Professor Hogg or other constitutional experts, that differ from the opinions we've got from Mr. Justice La Forest and Mr. Gibson, that challenge them in an academic setting?

Ms. Mary Dawson: I'm not aware of the details of that. No, I couldn't say.

Mr. Joe Comartin: Thank you.

The Chair: Thank you, Mr. Comartin.

Mr. Herron, please.

Mr. John Herron: Back in the spring, I had a little disagreement with the minister with respect to the hierarchy of protection issue, where what I was advocating was making the protection of habitat mandatory in federal jurisdiction and discretionary elsewhere, and he thought there would be a constitutional problem with that. Most legal opinion said that's not quite square, because we have other bills that do just that. So for the record, are there any constitutional obstacles to making habitat protection mandatory in areas of federal jurisdiction?

Ms. Mary Dawson: I don't know exactly what the minister was saying, but I wouldn't think so.

Mr. John Herron: Okay. Thank you.

The Chair: Mr. Lincoln.

Mr. Clifford Lincoln: I'd like to come back to the contradiction between the convention, as you interpret it—nests and birds' eggs—and the act itself, where the act says under section 12 “prescribing protection areas for migratory birds and nests, and for the control and management of those areas”, and then in regulation 35 anything “harmful” to the birds “in any waters or any area frequented by migratory birds”.

Mr. Justice La Forest and Mr. Gibson, in their opinions, said:

Parliament is not limited simply to implementing the bare bones requirements of the Convention; if it were, large parts of the present Act and Regulations would be ultra vires—which is not the case. So he says:

Parliament has the authority to include in implementing legislation matters which are necessarily incidental to fulfilling the obligations and purposes of the Convention.

• 1655

So admitting that “areas” doesn't mean “habitat” in the case of the justice ministry, what does it mean? What does it mean if it doesn't mean something more than birds and nests?

Ms. Mary Dawson: I cannot answer that question because I've not studied that particular piece of legislation.

Mr. Clifford Lincoln: I see that it makes a lot of sense, then. If the act goes beyond the convention in your sense, then the act must be ultra vires. How come it's never been challenged?

Ms. Mary Dawson: I can't answer that question.

Mr. Clifford Lincoln: I think that's it. You've answered my question.

The Chair: Thank you, Mr. Lincoln.

Madam Carroll.

Ms. Aileen Carroll: My question was asked by Mr. Herron, but I did have one quick comment to make really fast.

Ms. Dawson, you said in response to a query, “We think the bill is strong”. Are you speaking as a lawyer or as an environmentalist?

Ms. Mary Dawson: I'm speaking from a legal point of view as to whether the bill is defensible.

Ms. Aileen Carroll: Okay. So in other words, it's tight legally? It does the job that the legislators want it to do, but legally we've got it wrapped up in good legalese and in good argument. That's what you say when it's strong?

Ms. Mary Dawson: It's relatively risk-free from a constitutional point of view—that's what I'm saying. And I can't comment on what the policy intent was.

Ms. Aileen Carroll: I know. I just want to be clear that it's risk-free. It's so far below the bar, there isn't a risk in the world in this one constitutionally?

Thank you, Ms. Dawson.

Thank you, Mr. Chair.

The Chair: Mr. Knutson.

Mr. Gar Knutson: Thanks very much, Mr. Chair.

Madam Dawson, I want to thank you for coming today, and I've enjoyed this.

I'm just looking at, again, the Hogg textbook on the discussion of peace, order, and good government and the national concern test. He talks about how the law says that a national concern is something that goes beyond a local or provincial concern or interest and must form in its inherent nature to be the concern of the Dominion as a whole.

You don't think that preventing extinction of animals, plants, birds, or whatever is something that goes beyond a local concern? We sign these global treaties on biodiversity; we have big international conventions. Doesn't that suggest to you that even if we were to ignore the criminal power, which you said we can use, we could do this under—

Ms. Mary Dawson: I think you have to be careful about mixing up legal terminology with laymen's use of terminology. I think most people would agree with you that it's of concern that we protect endangered species, but it's very important to understand that in the law and in the court decisions, the national concern approach is that peace, order, and good government approach of power to the federal government. The courts have laid down some very stringent parameters to decide whether one can utilize that national concern power.

Mr. Gar Knutson: And you don't think preventing extinction would... The subject matter of preventing extinction...

Ms. Mary Dawson: Let me take you very quickly through the three key components of the test as to whether we can do something under the national concern. One is that the court says there must be a singleness, distinctiveness, and indivisibility of subject matter. Now that's sounds quite like gobbledegook, but the court interprets that as being something quite stringent.

Secondly, the subject matter is one that cannot be handled provincially in order to be legitimately handled by the federal government. And there is a question in this legislation as to whether some aspects can be handled provincially.

Thirdly, it has to be shown that the impact on provincial jurisdiction would have to be reconcilable with our federal-provincial division of powers. So if the court sees that in fact the provinces are handling some aspects of this or have the mechanism to handle it, that itself would potentially be persuasive against the court finding that we have jurisdiction under this national concern heading.

I suspect you'll find some of that discussion in Hogg, too, if you look a little further.

Mr. Gar Knutson: Okay.

The Chair: Thank you.

Madam Redman.

Mrs. Karen Redman: Very quickly, Mr. Chairperson, thank you.

Some aboriginal groups have expressed some concern around the non-derogation clause and have actually asked that we substitute it for the wording in... I think it's section 35 of the Constitution.

Can you just clarify for us that the non-derogation clause is indeed constitutional and consistent with that wording?

Ms. Mary Dawson: Yes, it certainly is consistent. It's slightly more expanded than the non-derogation clauses that have been used, and I really can't go into how it developed into the broader wording, but the effect of the wording is pretty close.

Mrs. Karen Redman: Thank you.

The Chair: Thank you.

• 1700

As to native land claims, since we are on that subject, do you think this legislation takes into account native land claims?

Ms. Mary Dawson: Yes. The bill appears to take that into account adequately.

The Chair: So we can give that assurance to witnesses from the native community that have raised that question with us?

Ms. Mary Dawson: I believe you could.

The Chair: You think so?

Ms. Mary Dawson: Yes. I haven't gone into that question in detail, though, but I looked at the provisions briefly.

The Chair: And finally, according to Dale Gibson, subclause 34(1) poses a problem because it seems to run counter to or to weaken considerably the preceding clauses 32 and 33. It modifies severely the provisions of clauses 32 and 33. Do you agree with Mr. Gibson?

Ms. Mary Dawson: Well, it provides a separate schema, but I don't have a problem with clause 34, from a constitutional point of view.

The Chair: Well, he describes it as a restriction.

Ms. Mary Dawson: It's certainly a restriction, but that's a policy issue; it's not a legal issue.

The Chair: That's a policy issue as far as you are concerned?

Ms. Mary Dawson: Yes.

The Chair: Fine.

All right. Well, on behalf of the members, as you have already heard, we are all grateful for your appearance. Thank you very much.

This meeting stands adjourned until tomorrow morning.