CHER Committee Meeting

STANDING COMMITTEE ON CANADIAN HERITAGE

COMITÉ PERMANENT DU PATRIMOINE CANADIEN

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 11, 1999

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[English]

The Chairman (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)): I declare open the meeting of the Standing Committee on Canadian Heritage.

[Translation]

The Standing Committee on Canadian Heritage is meeting today to study Bill C-48, an Act respecting marine conservation areas.

[English]

a study of Bill C-48, An Act respecting marine conservation areas.

Before I give the floor to the minister, I wanted to mention to members that Mrs. Susan Baldwin—I think you know her—is going to be our researcher on the committee. She also will be here for the clause-by-clause.

[Translation]

Ms. St-Hilaire, who is replacing Ms. Tremblay today, has asked to speak briefly. Ms. St-Hilaire, the floor is yours.

Ms. Caroline St-Hilaire: (Longueuil, BQ): Thank you, Mr. Chairman. First of all, I would like to say hello to the committee. We worked together for a little while at the beginning of last year. Ms. Tremblay will be absent for an indefinite period of time. She is on sick leave and sends her greetings. I will be replacing her over the next few weeks. We will advise you as to the state of her health as soon as she wants us to do so. Thank you.

Mr. John Godfrey (Don Valley West, Lib.): On a point of order, Mr. Chairman. Could we send our best wishes to Ms. Tremblay through Ms. St-Hilaire, along with our hope that she is feeling better? We are anxious for her to come back to the committee.

Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): And we're anxious for her to come back full of vim and vigour.

The Chairman: Mr. Godfrey, you took the words right out of my mouth. That is precisely what I wanted to say to Ms. St-Hilaire. We are pleased to welcome you here once again, Ms. St-Hilaire. You have already worked with us. On behalf of the committee, we would ask that you extend to Ms. Tremblay our sincere wishes for a speedy recovery. I hope that we will see her soon, but we are very glad to welcome you here in the meantime. Thank you.

[English]

We're very pleased to welcome today the Honourable Andy Mitchell, Secretary of State for Parks. Mr. Mitchell has appeared before us previously, in connection with an act relating to the parks issue.

This is a very special issue, the establishment of marine conservation areas. We've had many sessions to date and have heard several witnesses. I think it's fair to say there are strong views on either side of the issue of marine conservation areas. I think it will be very useful for us, and we are lucky today, to have the minister with us to make the point on behalf of the government on the bill he has proposed to the House.

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Mr. Mitchell.

Hon. Andy Mitchell (Secretary of State for Parks): Thank you very much, Mr. Chairman.

I too would like to add my best wishes to Madam Tremblay. I've had the opportunity to work with her in her role as critic. She is an individual very dedicated to her job. I wish her well, and a speedy recovery.

Let me begin also by thanking the committee for all of its hard work on Bill C-48. You alluded to the importance of this legislation and the complexity of it. I appreciate that you have taken a very thoughtful approach and have undertaken a very careful examination of the legislation.

This committee has provided a forum for a wide-ranging review of the bill. A number of interests have come forward, and there's been a large amount of comments on the legislation before us. From what I have been able to see, in reviewing the testimony and from the reports I've received, very useful input has been provided both by the committee and the witnesses you saw fit to call.

Today I intend to do two specific things. First of all, I will address a number of the issues raised by the witnesses and relate those to the bill that is before the committee. I will also speak to some of the amendments that have been suggested by a number of the witnesses.

Mr. Chairman, for over 100 years Canadians and their governments have built a world-renowned system of national parks. During this Parliament, we are being presented with the opportunity to chart the course for Canada's special places for the next 100 years.

Last year this committee studied and eventually passed legislation to establish the Parks Canada Agency, a vehicle that will give us the opportunity to more effectively manage our parks and other special places.

Shortly I will table a new National Parks Act, which will establish a legislative framework that will govern our parks in the new millennium.

Currently, this committee in Parliament has the opportunity to set the stage for building a system of marine conservation areas. In this way, future generations of Canadians will be able to enjoy and appreciate the diversity of our magnificent marine environments as they now enjoy the outstanding natural areas in our parks. The long-term goal is to represent each of Canada's 29 marine regions in a national system of MCAs, much as we will establish a national park in each of the 39 terrestrial natural regions of Canada. Each MCA, like each national park, should be an outstanding example of the region it represents.

There is an assumption that MCAs will simply be national parks in the water. This is not so. In national parks, maintenance of ecological integrity is the first priority when considering park zoning and visitor use. In other words, parks are managed so as to be essentially unaltered by human activity. Marine conservation areas, on the other hand, are designed to be models of sustainable use, and the approach to management is one that balances protection and that use.

MCAs will be for the enjoyment of Canadians, and far from reducing economic opportunities, they will expand them, as these places attract tourism—for instance, as we are doing at Fathom Five and the Saguenay-St. Lawrence Marine Park. Fathom Five has an international appeal that attracts over 5,000 divers a year, and over 40,000 people a year take glass-bottom-boat tours. The spinoff benefits of this for local communities are substantial.

We have a mandate to promote understanding of the marine environment and to provide opportunities for research and monitoring that will encourage best practices in sustainable ocean management.

Finally, marine conservation areas will be focused on public education—on bringing knowledge and pride to Canadians about the marine world, of our oceans and Great Lakes, and how it has shaped the history and economy of Canada.

What we do here today will not just affect Canada and Canadians of 1999 but also our children and their children. We are acting for the generations yet to come. We are the custodians of this planet on their behalf, and we will be judged by them. We must not fail them any more than we can allow ourselves to fail the Canadians of today.

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Parks Canada's MCA program is part of the larger commitment of this government to establish a comprehensive network of protected areas in Canada's oceans. Our partners in this endeavour are the Department of Fisheries and Oceans and the Department of the Environment. We each have distinct and complementary roles to play.

Under the Oceans Act, the Minister of Fisheries and Oceans has the lead role in co-ordinating the development of the network. He also establishes marine protected areas, focusing on conservation of important fish and marine mammal habitats.

The Minister of the Environment can establish marine wildlife areas to protect critical marine bird habitat and undertake scientific research.

Parks Canada's program serves a much broader objective—the establishment of a permanent system of marine conservation areas that are a representative sampling of Canada's marine regions. This program will be Canada's major contribution to conserving marine biodiversity consistent with our international obligations. It goes far beyond simple protection, and recognizes the role that Canada's oceans and Great Lakes have played in defining the country's economy, culture, and identity.

In short, it is a heritage conservation program, one ideally suited to the mandate of the Minister of Canadian Heritage.

Parks Canada has taken a partnership approach in the management of this program, which is clearly reflected in the provisions in the bill. Other ministers have statutory responsibilities that will affect the management of MCAs, and Bill C-48 has been carefully drafted to take into account this fact.

It is neither appropriate nor practical for Parks Canada to assume responsibility for such activities as fishing and shipping within an MCA. Balanced mechanisms for ongoing cooperation amongst responsible departments are built into the legislation.

Let me make sure this is perfectly clear: This bill does not create an additional layer of bureaucracy. Local people do not have to worry about Parks Canada being in charge of fisheries. Parks Canada does not want the job—now or ever, for that matter. It does not have the expertise or the resources to do so. Responsibility for the administration of fisheries will stay with DFO, where it belongs.

Bill C-48 is framework legislation. It establishes the legal and regulatory framework for creating and managing marine conservation areas. It does not establish any specific area.

How will these areas be created and managed? The answer can be found in the bill, in Parks Canada's policies, and in the co-operative consultation process currently underway in several regions.

There is a clear requirement for public consultation in the establishment of any MCA, with particular emphasis given to affected coastal communities. The nature of these consultations are set out in Parks Canada's policies. The steps required by these policies can be seen in the marine conservation area feasibility studies, which have already been launched by Parks Canada.

Any potential MCA will be the subject of a detailed feasibility study and community consultation. These will always involve a multi-stakeholder advisory process.

I wish to emphasize once again to the committee that if there is not public support for the creation of an MCA in a given location, then the proposal would not be brought forward to Parliament. This is not an empty promise.

Just yesterday, on the advice of the local advisory committee in Newfoundland, and in consultation with the province, I brought to an end that particular feasibility study. When the government decides to take the final step and formally establish an MCA, Parliament will have an opportunity to examine the proposal in detail and satisfy itself that there is community support.

Bill C-48 also calls for active stakeholder participation in the formulation review and the implementation of management plans. Again, the legislation provides for accountability to Parliament through the tabling of management plans for each MCA.

In addition, the minister must table in Parliament every two years a report on the state of marine conservation areas and on progress towards completion of the system.

The issue of consultation has been a recurring theme throughout the committee's hearing on Bill C-48. Parks Canada consulted with the full range of interested parties in the development of this legislation. These parties included provincial governments; fishing and aquaculture interests; aboriginal organizations; environmental groups; oil and gas interests; academics; and tourism associations, to name a few.

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I personally have briefed all provinces on two separate occasions, met bilaterally with the ministers responsible in both Newfoundland and British Columbia, and have consulted directly with organizations in both British Columbia and Newfoundland. Many of the witnesses have testified about the high quality and thorough nature of these consultations.

I would now like to turn to the four key policy issues that have been the subject of some debate on the bill. They are provincial jurisdiction, management planning, zoning, and a non-derogation clause respecting aboriginal and treaty rights.

I have noted that there has been some concern expressed that provincial jurisdiction could in some way be infringed by this bill. Let me assure the committee that this is neither the intention nor the case.

If a province owns all or part of a seabed in an area where Parks Canada proposes to establish an MCA, a federal-provincial agreement would be required to transfer ownership to the federal government. Without such an agreement, the proposed MCA cannot proceed. For greater certainty, I am prepared to entertain suggestions that this requirement, which is now implicit, would be explicitly specified in the legislation.

In marine areas where there is a contested federal-provincial jurisdiction, I would also like to assure the committee that the federal government has no intention of acting unilaterally. There will always be consultations with the provinces concerned, with a view to finding a mutually satisfactory resolution.

On the issue of management planning, the bill states that the management plan for an MCA will be prepared within five years of the area being established. It's been suggested that five years is too long to wait. I agree. Coastal communities need greater certainty before an area is established. Thus, when the minister puts a new MCA proposal before Parliament, together with a report on the objectives and management of the area, that report should also include an interim management plan based on the results of the feasibility study.

Perhaps it would also be useful to the committee of the House and the Senate if this report outlined the consultations held and any agreements reached with the provinces and other departments. I hope the committee will be able to deal with that particular issue in clause-by-clause.

In addition, management advisory committees will be created for each marine conservation area to ensure that consultation with local stakeholders continues on an ongoing basis.

The management plans for each area must be reviewed at least every five years. We will take a learn-by-doing approach for every MCA. If local communities identify problems, Parks Canada will revise the management plan in consultation with them. The regulations and zoning may also be changed as needed.

Ongoing consultations within each marine conservation area will allow Parks Canada staff to learn from local people. The traditional ecological knowledge that coastal communities and aboriginal people have acquired over generations is a vital asset in managing marine resources. Witnesses have asked that this be recognized in the bill, and I agree that this should be done.

On the issue of aboriginal and treaty rights, several witnesses, in particular the Nunavut Wildlife Management Board, recommended that a non-derogation clause be included in Bill C-48. This type of clause states:

For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights under Section 35 of the Constitution Act, 1982.

Constitutional rights cannot be abrogated by any act of Parliament, and it is the obligation of the government to respect such rights whether or not such a clause is in statute. However, I think an appropriate non-derogation clause could be included, if the committee so desired, so long as the government can still make regulations in consultation with aboriginal people for conservation purposes.

On the issue of zoning, I want to emphasize to the committee the importance of zoning as a powerful and flexible tool for managing use within an MCA. It is an important component of the legislation. It will allow us to create marine conservation areas that reflect both our national principles and local conditions. A marine conservation area that is established on the west coast is likely to be different from one that is established on the east coast, in the Arctic or in the Great Lakes.

In each marine conservation area there will be multiple-use zones where ecological, sustainable uses are encouraged, including fishing. There will also be zones where special protection is afforded—for example, critical spawning grounds, cultural sites, whale calving areas, and scientific research sites. These would be protected zones, where resource use is not permitted. The legislation should clarify the general approach to zoning.

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Parks Canada will identify the location of protection zones and surrounding multiple-use zones for each MCA during the feasibility study for that area in full consultation with local stakeholders.

The committee has heard some witnesses say that Bill C-48 is too restrictive, and unnecessarily focused on environmental protection. Others see the bill as too weak, and have asked for further blanket restrictions and prohibitions.

After our extensive consultations, I believe we have struck a good balance between protection and sustainable use. Very few activities are completely prohibited, but tools are available to regulate activities to meet the objectives of leaving the structure and function of each marine conservation area's ecosystem uncompromised.

We have an obligation to consult affected communities during feasibility studies in the management planning process and in preparing the applicable regulations. Parliament will have the ultimate say as to whether an MCA is established or not.

Each area, as I said earlier, will be unique, unique in its characteristics and uniquely managed. A marine conservation area in Georgian Bay will be distinct from one in the Arctic or in the Strait of Georgia or in the Bay of Fundy.

In light of the representations made to your committee, I believe there are a number of important ways in which the bill could be clarified and improved. I have suggested some of those to you today for your consideration.

I look forward to your recommendations and to working with this committee again in the future to establish each marine conservation area as they are ready, building our national system one area at a time.

I would be pleased, Mr. Chair, to answer any questions from committee members.

The Chairman: Thank you very much, Mr. Minister.

Mr. Mark.

Mr. Inky Mark (Dauphin—Swan River, Ref.): Thank you, Mr. Chairman.

I'd like to thank the minister and his staff for being here today.

I'd also like to thank the people responsible for doing all this work. It's been very helpful.

Considering that we've heard from many people, and many people and groups have made numerous recommendations, will we see these recommendations in the form of amendments from the government?

Mr. Andy Mitchell: Yes, it is the intention of the government to table some amendments. I've addressed some of those in my presentation, in terms of zoning, in terms of interim management plans, in terms of dealing with aboriginal issues and others that have been suggested. They will come up.

I think one of the things this committee can take great pride in is the work it has done on this legislation, and I know on other legislation I have brought forward, in a very constructive way. Looking at some suggestions, certainly there are some that I think we can move forward with.

Mr. Inky Mark: In the House I was very surprised—and I can't remember whether it was yesterday or the day before—when you stood up and indicated that the people of northeastern Newfoundland have had their voices heard, and made the announcement that you will not be creating a conservation area in Bonavista Bay, I believe.

Will this set a precedent for other communities in other coastal areas in terms of the whole consultation process?

Mr. Andy Mitchell: I don't know if I would characterize it as a precedent. The way I've certainly undertaken my responsibilities is that when we enter into consultations with local communities, I believe those are real and meaningful consultations. They aren't an exercise of fluff.

In this particular case, that particular advisory committee, acting on behalf of the residents of that area, came to a particular conclusion. I had stated at the beginning of that process that I would honour their particular perspective. They came forward with it, and I've honoured it.

I think that clearly demonstrates that when we say we are going to consult, and that's part of this bill, this is a real exercise that will take place.

I believe what we're saying here to people is that we will encourage communities to enter into a consultative process, because they know they have a real and meaningful role to play.

Mr. Inky Mark: As you know, I've been very critical of many consultation processes that have been enunciated by this government. I applaud Andy Mitchell for his commitment to making a change. I wouldn't necessarily applaud the government—or not at this time, anyway.

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Some hon. members: Oh, oh.

Mr. Inky Mark: I have one last question. At one of the other meetings I made a request that the committee members receive the initial correspondence that was sent out. I'm still waiting. I still have a problem with the initial consultation process, where letters were sent to over 3,000 stakeholders. I would like to see a copy of the initial letter or correspondence that was issued.

I'm still getting calls, from that big long list, from people wondering why they weren't consulted. I still have a problem dealing with that.

Mr. Andy Mitchell: My understanding is that we did table the list. If the actual letter that was sent to them hasn't been tabled, I'll make sure you and the rest of the committee get a copy of that.

I've been told by my officials that apparently it has been tabled, but I'll check. If you don't have it, Inky, I'll make sure you get it.

Mr. Inky Mark: Thank you very much.

The Chairman: The clerk advises me that the list included the letters at the bottom of the document. Maybe you could check and see, and if you have enough to satisfy your requirements, fine. If you haven't, let us know what you really need.

Mr. Inky Mark: Thank you, Mr. Chair.

The Chairman: Before I recognize Mr. Dumas, I would like to acknowledge the presence here of a previous parliamentarian, Mr. Alexandre Cyr,

[Translation]

a former member from the Gaspé.

Good morning, Mr. Cyr. We're very pleased to see you here today.

[English]

Some hon. members: Hear, hear.

[Translation]

The Chairman: Mr. Dumas.

Mr. Maurice Dumas (Argenteuil—Papineau, BQ): Good morning, Mr. Minister.

You must know that Quebec is very jealous about the integrity of its territory. You stated, somewhere in your brief, that you would be consulting the provinces and that you would not go against the provinces; I'm thinking of Quebec, in particular. If Quebec were against having marine conservation areas in its territory, who would have the final word?

[English]

Mr. Andy Mitchell: The way the legislation is structured, obviously the provincial government would; the legislation calls for the ownership to pass to the federal government. So if there's a particular area where it falls under provincial jurisdiction, if the province was not willing enter into an agreement then obviously we would not proceed. The reality is that in many cases, those 29 areas are clearly within federal jurisdiction, accepted by all of the provinces as being in federal jurisdiction. That would be fairly straightforward.

One of the unique things that has developed with the MCA is that different situations have called for different processes. The way in which we established Fathom Five in Ontario has been very different from the agreement we reached with the Province of British Columbia in respect of Gwaii Haanas. Indeed, we used a model in Quebec that has been very different from others as well.

The way the legislation is established, anything that would be within provincial jurisdiction would pass to the federal government in order for a marine conservation area to be established. That would have to be subject to a federal-provincial agreement, so if the province is not willing to agree to it, then the title would not pass.

[Translation]

The Chairman: I believe that you have another question.

Mr. Maurice Dumas: I've already asked another witness this question, but I would like to hear what you have to say. This is a question about ownership of the sites that you would like to establish as marine conservation areas. This may pose a major problem, especially with the Aboriginal people. How do you foresee this problem, given that the Aboriginal people, up until now, have been lukewarm about Bill C-48?

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[English]

Mr. Andy Mitchell: I think the bill clearly states that we have an obligation to consult, and as I indicated in my speech, we're willing to look at some changes to make that more clear.

The legislation itself calls for the establishment of a reserve prior to it actually becoming a full-fledged MCA, pending any land claim settlement that would have to be negotiated. So there is clearly a provision for that in the bill, and an understanding that we would need to work with our aboriginal people where their interests are impacted.

In areas where an MCA would be in their traditional territory, obviously they're going to have to be an integral part of the ongoing management. We've clearly demonstrated our willingness to do that on the terrestrial side with our national parks system, particularly the ones we've established north of 60. Obviously that would be the case as we establish marine conservation areas.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte (Churchill River, NDP): Thank you, Mr. Chair.

It's certainly an honour to finally have met you officially.

I want to start off with comments on the title itself, “marine conservation areas”. You didn't touch on it, but I think DFO has “marine protected areas”, which is in direct contravention in people's minds.

I don't pretend to know how DFO decides on marine protected areas, but my understanding is that conservation areas are more permanent.

Why not consider the term “marine parks”? We started the process with the Saguenay-St. Lawrence. People, in their minds, know Parks Canada will be involved, and it's just a matter of, for example, are we trying to soften the blow on communities or...?

So it's the whole aspect. What are we trying to rationalize with that?

The whole issue of the 29 parks comes into play. This document identifies the 29 parks, but in no way does it morph into 48. So a new minister or a new government could all of a sudden start going, “19, 50, 129”, in terms of locations in this country. This act does not specifically say, or limit it to, the coastal. The terminology in here deals with internal waters as well.

I had raised the point that “Great Lakes” are not limited to what everybody in the world tries to perceive as the Great Lakes. You have Great Bear Lake; you have Great Slave Lake; you have Lake Athabasca; you have the great lake of Winnipeg. These lakes are internal bodies. You also have rivers, heritage rivers, coming into play.

But in the consultation process, the act specifically says, “affected coastal communities”. Some of these regions are coastal, and the MCAs may be coastal, but you have fresh waters with inland waters that feed into their coastal areas that will impact your marine conservation area. You may want to consult internal communities, not only the coastal communities but also the affected communities upstream from the creeks or the water flow or wherever.

These are my areas of concern that you did not address in your speech.

As well, I think the terminology of aboriginal “organizations” as opposed to aboriginal “communities”—or aboriginal “nations”, as some aboriginal peoples consider themselves, their sovereignty being intact under treaty recognition—is a distinct departure. This terminology is quite selective.

The Chairman: This is a short question today, I guess, is it?

Mr. Andy Mitchell: It's a multi-faceted question.

Let me try to make sure I hit all of the responses, and let me know if I miss some.

First of all, on the issue of the name, I think we were trying to make a clear distinction between a marine protected area and a terrestrial protected area, because we do in fact manage them differently.

In a terrestrial type of location in a national park, essentially we're trying to make sure there is no impact on the ecological integrity of the particular site. Any human intervention allowed is done in a way that it does not degrade the ecological integrity of the site. There is no resource extraction in a national park.

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In a marine conservation area, that's somewhat different in that there is sustainable development that will be allowed to occur in a marine conservation area.

So if we gave the impression that it was going to be exactly the same as a park, we would not be accurately describing, through its name, what could occur in a marine conservation area or in the way that we would in fact manage a marine conservation area.

So that was the thought process in trying to make it clear with the name.

In terms of comparing it with the protected areas through DFO, and the marine conservation area, the way I would put it is that a protected area under DFO is very focused. It would tend to be for a very single, specific reason, to protect a particular species or a particular underwater item that may exist. It's clearly just for protection, whereas a marine conservation area is trying to establish a representative sample of a particular marine region in Canada. It goes far beyond just protection, although protection is very important. It goes into enjoyment, it goes into allowing for use in certain parts of the zone, and it goes into education. It has a far broader mandate than just protection, and it would be a far bigger representative area.

That I think is a little bit of the difference between the two.

Your issue on coastal communities I think is a good one. I'm going to ask my officials to look at that. I don't want to be excluding anybody who has an interest. I'm trying to be inclusive in how we do it. If the wording is inadvertently being exclusive, then we need to work on the wording. I think that's a good point.

I think the same thing is true with your comments on the aboriginal. Again, if we're being exclusive, that's not our intent. We're trying to be inclusive. If we have to get the right wording to be inclusive, and it's different from what we have, then I think we have to look at that.

Can there be a change in terms of the systems plan? The answer is, yes, there can be a change in the systems plan. The government of today cannot speak for what the government of tomorrow may do. It has the right to review and go back and change it. But one of the things that's here, no matter what systems plan may be in place, is that it's Parliament's prerogative, under the legislation, to actually establish the MCA.

It comes into Parliament, it's referred to.... Actually, I guess it would be referred to this committee. This committee could make a decision that, no, we don't want it, and it would go to a vote in the House.

Regardless of the systems plan any government of the day may have, the actual approval and establishment of a particular park—or the elimination of a park, depending, because conceivably, I guess, a systems plan can leave out an area that was already established—is the prerogative of Parliament. Again, the legislation puts that clearly into the hands of Parliament.

It's a good point; if we need to define better what areas we're talking about, perhaps we may want to put it right into the preamble what particular marine areas in Canada. We could put, say, the three oceans and the Great Lakes, and be more specific right in the preamble. The committee may want to discuss that.

The Chairman: Mr. Minister, the legal adviser to our committee was pointing out that according to his reading of subclause 10(1), the definition there would be broad enough. The English version talks about “other parties”, and the French version talks about “notamment”, which therefore doesn't indicate that it's exclusive. It's broad enough to pick up any other regions if this was desired.

I was wondering if Mr. Amos could tell us whether he agrees with this reading of it.

Mr. Bruce Amos (Director General, National Parks, Department of Canadian Heritage): Yes, Mr. Chairman. Our understanding is that “and other parties” would be broad enough to include the type of groups or communities that Mr. Laliberte was referring to.

The Chairman: Mr. Laliberte, I'll get back to you—that took quite awhile—to give a chance to other members.

Mr. Bonwick.

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Mr. Paul Bonwick (Simcoe—Grey, Lib.): First of all, thank you very much, Mr. Minister, for showing up today and for clarifying some of the issues and answering some of the questions.

I would like to start by providing you with my opinion of what's been transpiring over the last number of weeks or months on this particular piece of legislation.

From my perspective, there appears to be a consensus—in fact, from witnesses or members of Parliament there appears to be almost full agreement—over the intent of establishing MCAs through this particular piece of legislation.

I don't know if it's actually been read in, for the record, what the purpose for establishing it is. It's only four lines. It reads:

for the purpose of protecting and conserving representative marine areas and for the benefit, education and enjoyment of the people of Canada and the world.

So there seems to certainly be a consensus in that regard in supporting the legislation. I don't necessarily think anybody, practically or logically, could bring forward an argument that would oppose that kind of an intent.

The question or concerns that have been addressed—and you've touched on this—have been more with respect to how the minister, or cabinet in turn, identifies and finally says, “This is going to be a marine conservation area.”

At the risk of having you repeat yourself, to address or clarify some of these concerns, for the record, for witnesses who will have an opportunity to read it as well as for parliamentarians, I am going to ask two or three specific questions.

You addressed what your opinions are, and how you intend to deal with it. You spoke about the intent of the design of the legislation. I want to go a little bit beyond that and talk about how you're legally bound, to perhaps make some people rest at ease a little more so.

Are you legally bound, through this piece of legislation, to provide full access to all significant stakeholders when considering the establishment of an MCA?

Further, are you bound by legislation to allow Parliament to have input and in fact verify that there is a comfort level or a buy-in from the stakeholders prior to establishing an MCA?

The last question is with regard to establishing an MCA, again regarding potential economical and cultural impacts when deciding on the establishment of a marine conservation area. If the MCA is located on federal properties—you have the consensus, but if they're located on federal properties—are we bound, from an economic perspective, to perform a geological survey to assess the non-renewable resources as well as the potential quantities therein?

Again, are you bound by the legislation—not the intent but the actual wording in the legislation—to make sure that parliamentarians, and through them, stakeholders, have access to those geological surveys?

Mr. Andy Mitchell: I'll try to get all that in one reply.

In terms of the consultation in establishing an MCA, subclause 10(1) clearly states that the minister “shall”. There is no option. The minister shall provide opportunities for consultations. It lists a whole group of types of parties that he or she may consider appropriate.

So that's number one. It's “shall”, so that has to happen.

In terms of Parliament, again, it is clearly stated in the legislation that:

7.(1) Before an amendment to Schedule 1 or 2

—which is actually listing a new MCA—

for a purpose referred to in subsection 5(1) or 6(1), respectively, the proposed amendment shall be laid before each House of Parliament together with a report on the objectives and management of the proposed marine conservation area or reserve, and an amendment so laid stands referred to

—and this is as I was mentioning—

the standing committee of each House, that normally considers matters

That committee will then report back to the House after its deliberations.

So, yes, Parliament has a clear role to play in establishing the MCA.

As to conducting a MERA on it, that is by policy. It's not by legislation. That's something we have done in terms of establishing our national parks. It's something we would do in establishing marine conservation areas.

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Quite frankly, it's something we would want to do. We certainly would want to have an idea of the mineral potential, the oil and gas potential, prior to proceeding. I think it would be an integral part of any kind of consultation process to have that particular knowledge.

That policy is part of our policies, and they have in fact been tabled in Parliament. They haven't been approved by Parliament, but our operating policies have been tabled in Parliament.

Mr. Paul Bonwick: Thank you for clarifying that.

The Chairman: Mr. Godfrey.

Mr. John Godfrey: I was interested in your remarks, Minister, about the suggestions that have been made by the folks from Nunavut about the inclusion of certain language, and then your response, which I understood to be that it is automatically covered as part of the Constitution. We don't need to insert those words, but we might.

Now, this had an air of familiarity to me. When we looked at the previous parks agency legislation, we had a similar kind of discussion about whether we needed to make explicit the provisions of the Official Languages Act. The opinion we had from Justice, which I must say I rather agreed with, was that because Parks fell under a definition of a federal agency, no matter how you sliced it, it was not necessary to put that in. We put it in anyway. The danger, they said, is that once you start doing it, you have to put it in everything.

Is there kind of a legal similarity between these two issues? That is to say, in one case, federal institutions are automatically covered by the Official Languages Act; don't need to put it in. In the other case, anything we do is automatically covered by the Charter of Rights and Freedoms; don't need to put it in.

Or are they of a different nature—and I'm not sure, but this may be a question for Professor McWhinney—other than the fact that we would understand that the charter is the supreme law of the land? Or is there something else that I'm missing here?

Mr. Andy Mitchell: Not being a lawyer, I couldn't provide a legal opinion on whether both of those cases were exactly the same. There are a number of lawyers in the room who could, I guess.

My understanding of it is that there are other precedents here. There is federal legislation that, even though it's in the Constitution, clearly have that clause in it.

My judgment is that if, for greater certainty, the committee decides it wants to put that type of clause in the legislation, that doesn't create any insurmountable difficulties.

From the advice I have, it is redundant in the sense that it is already.... Clearly, we can't pass legislation that is in conflict with the Constitution, but my understanding is that other legislation does have such a clause in it. If the committee decides it wants to put it in, it should proceed.

Mr. John Godfrey: I have a subsidiary question, which, again, may be one for lawyers. If for greater certainty you put it in once, in the right place—I don't know whether it's in the preamble or wherever—do you then have to do it all throughout the piece, as the Nunavut folk kept saying, or does once cover it?

This is definitely a non-lawyer question.

Mr. Andy Mitchell: The advice I have is that once covers it. But that's my understanding of it. I think the committee will want to make that decision and seek advice. My understanding is that once covers it. Once you make the statement that nothing is going to...is intended to have that impact. It's there, it's in the legislation.

The Chairman: Madam St-Hilaire.

[Translation]

Ms. Caroline St-Hilaire: Thank you. I have a question for the lawyers. Is the preamble an integral part of the Act? Perhaps you could provide us with an answer later on.

I'd like to thank the Minister for his presentation. I have several questions which, of course, pertain to provincial jurisdictions.

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I would like the Minister to tell us exactly where this obligation to consult the provinces can be found in Bill C-48. The bill talks a lot about providing opportunities for consultation and it stipulates that the Minister may consult the provinces, but there is absolutely nothing indicating that this is mandatory. Earlier, you answered my colleague by saying that the provinces would have the final say. I would like to know where this is spelled out specifically.

[English]

Mr. Andy Mitchell: I'll answer that in two ways. First of all, to answer your direct question, in subclause 10(1) of the bill it says:

The Minister shall provide opportunities for consultation with any federal and provincial ministers

So it's clearly that the minister shall consult with the province.

On the second issue, which is a slightly different issue in terms of a requirement with regard to terms of jurisdiction or ownership, the bill calls for the establishment of an MCA when it is clearly within federal jurisdiction. If you have an area that is in provincial jurisdiction, before you could proceed to establish an MCA under this legislation you would need to see a transfer of that area to the federal government.

That transfer could only occur if both parties agreed to it. You can't unilaterally transfer from the province to the federal government. So the province is going to have a role to play. The province, after negotiating with the federal government, may come to the conclusion that it wants to transfer it, or it may come to the conclusion that it doesn't.

Subclause 5(2) in the bill indicates there has to be clear title. It says an MCA can be established:

only if the Governor in Council is satisfied that clear title to the lands to be included in the marine conservation area is vested in Her Majesty in right of Canada.

That's the second part of what I was saying in terms of it having to be under federal jurisdiction.

But as I mentioned earlier, I think it's also important to note that when you look at the systems plan, the vast majority of those areas are clearly in federal jurisdiction—undisputed federal jurisdiction.

So, yes, there will be situations where the issue of jurisdiction may come up, but in the majority of those regions the jurisdiction is clear and undisputed by either the federal government or the province.

The Chairman: Mr. Minister, I wanted to pick up on Mrs. St-Hilaire's question. To you or Mr. Amos, if you look at subclause 10(1), it seems to me that the French version gives far more discretion than in the English version, which says, “The Minister shall provide opportunities for consultation”.

In French it says, “Le ministre favorise la consultation”—that is, he favours consultation—“des parties de son choix”, which means parties he chooses. The English version seems much more straightforward.

A lawyer pointed out to me that in the policy, it seems the wording is far clearer. It says, “Parks Canada will initiate discussions”, and in French, “entreprendra des discussions”, as if it's far more positive, and doesn't leave that sort of looseness.

I was wondering—and this touches on what Mrs. St-Hilaire brought up—whether you find that these two versions contradict...well, not contradict, but are not quite the same.

Mr. Andy Mitchell: I believe you're quite right, Mr. Chair, that there is a difference. There is an error in drafting. It's our intent to table an amendment that makes the English and French versions consistent, and to make it clear that it is a requirement for consultation.

The Chairman: Thank you.

[Translation]

Have you any further questions, Ms. St-Hilaire?

Ms. Caroline St-Hilaire: No. Thank you, Mr. Chairman.

[English]

The Chairman: Mr. McWhinney.

Mr. Ted McWhinney (Vancouver Quadra, Lib.): I would just ask for, Mr. Chair, a little more clarification on the point my colleague, Mr. Godfrey, raised.

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There has been some discussion with other ministries concerning the applicability of the charter rights and the general constitutional provisions in relation to matters concerning aboriginal treaties. It's based, really, on the amendment to subsection 35(3) of the charter that was made 12 months after the charter was adopted, and by a different justice minister from the minister who is in charge of the charter.

It's not, in many views, a very well-drafted amendment of the charter. There are some ambiguities. But would it be the position of your ministry that you would insert, or favour inserting, expressly in legislation such as this the concept that it is subject to the charter and the Constitution, which would certainly clarify the ambiguity I and others have found in subsection 35(3)?

I don't want to ask you a technical question in vain, because I realize this is not your area of professional expertise, but Mr. Godfrey raised such an interesting issue that if you had any additional comment to make, I'd be glad to have it for the record.

Mr. Andy Mitchell: I certainly wouldn't pretend to possess your knowledge, Professor McWhinney, in this particular area. I'll read to you the clause we're suggesting:

For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights under Section 35 of the Constitution Act, 1982.

That's the type of wording we would think would work.

Mr. Ted McWhinney: That is somewhat neutral on the issue I was referring to. I'd have no criticism, one way or another. I don't think it advances us or puts us back on an issue that's obviously a more general concern than the treatment, obviously, that's given within your ministry. You're not there to solve general constitutional problems; you have enough problems as it is.

Mr. John Godfrey: Why not?

Voices: Oh, oh.

Mr. Ted McWhinney: But I think it's an interesting point, and I'm glad Mr. Godfrey raised it.

I appreciate your comments on it. We can add them to the file, with other ministries.

The Chairman: Mr. Mark.

Mr. Inky Mark: Thank you, Mr. Chair.

I have one short question. The intent of this legislation is not only to conserve but also, more importantly, to protect ecosystems. I wonder if the ministry has thought of calling a spade a spade and calling the act a “protection” act. We use the acronyms CPA and CMA quite loosely. If it was more definitive, perhaps we then would know the intent of the bill by its title.

Mr. Andy Mitchell: As I was suggesting to Mr. Laliberte, it goes beyond just protection. Protection is an ingredient in a marine conservation area, and an ingredient in the legislation, but there are other ingredients as well. It is there to be a representative example of a particular marine conservation area, so it has a representative role to play.

There's a heritage role to play in recognizing and celebrating the role our oceans and other waterways have had in Canadian history. There's an education role that is played. There's a role to provide opportunities for Canadians to enjoy the natural and cultural marine heritage. It also allows, under an MCA, sustainable development.

So, yes, protection is an important part of this legislation, but it isn't an exclusive part, so I would have some concerns that if you brought that particular concept into the title, then, to be fair, you would have to bring up the other concepts as well.

Mr. Inky Mark: You can't do any of that other stuff unless you protect it, and that seems to be the focus of people who are examining the bill. In fact, in your preamble, that's what it basically says. It uses the word “protection” quite often, throughout the bill.

Mr. Andy Mitchell: I'm not disputing that this bill involves protection—it's the important ingredient of it—but it is not exclusively or simply for protection. There are other reasons. If you go to the preamble, it lists a number of reasons as to why we would establish an MCA.

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Certainly in the consultations we have, and certainly in the public statements I make, I don't try to underplay that an MCA is for protection. That's what it's there for. That's what we're trying to achieve. I'm quite forthright whenever I talk to the people I deal with, whether it be my provincial counterparts or communities, that this is what it's all about.

Mr. Inky Mark: Okay. Thank you.

The Chairman: Mr. Minister, can I put three brief questions to you relating to what we heard here?

The first one relates to Newfoundland and the fact that we have abandoned the proposed MCA. Does that mean in the future there won't be negotiations to restart something in Newfoundland, or does some type of dialogue continue with them? That was the first question.

Second, there were a lot of remarks about prohibitions in the hearings. Several conservation groups want to add prohibitions regarding dragnetting, and others regarding oil and gas exploration. I was wondering what your views were with regard to prohibitions specifically.

The third one was in reference to the parks issue, and whether, where we have acknowledged the reference to the ecological integrity of the parks, we shouldn't have reflected that here as well.

Mr. Andy Mitchell: Let me address those three in order, Mr. Chair.

On the issue of Newfoundland, what's taken place is that there was a feasibility study launched for a specific area within a particular marine area. That particular feasibility study has not panned out. There is not local support for it.

That doesn't mean that we will not try to find a different representative area within that particular marine area, or that at some future date the community itself—and I emphasis that; the community itself—after observing how these conservation areas work, may not come back and say they'd like to take a second look at it. But it will be up to the community to do that.

So we continue to be committed to having a representation in each one of the 29 areas. We may in other areas do two or three feasibility studies before we arrive at the specific representative area that's going to be the MCA in that particular marine area.

In terms of prohibition, I think one of the strengths of this particular bill is that it does allow for flexibility and for management that is consistent with the particular realities of a particular marine conservation area. By that I mean that as part of the marine conservation area, you can have a particular zone where you have the ability to enter into specific prohibitions because it makes sense for that particular zone. You may be in a different marine conservation area, in a different ocean or a different part of the country, where that particular prohibition may not be necessary or desirable.

So the tools are there to have those prohibitions if it makes sense for the management of that particular area. That type of process would of course form part of the management plan of a particular MCA. There would certainly be a discussion and a transparency in knowing what it was that was prohibited in a particular zone. So the tools are in fact there in the current legislation if it is felt desirable to have a particular prohibition.

On the issue of the ecological integrity, and using the same phraseology in the National Parks Act, I go back to my response to Mr. Laliberte, when I was talking about the name. There is in fact a difference in how we intend to manage our national parks and how we intend to manage marine conservation areas. It has never been the intent to do them exactly in the same way. As such, I think that's reflected in the language in the act.

Bruce is just giving me, so that I can read it into the record here, exactly what it does say in this legislation:

4.(3) Marine conservation areas and reserves shall be managed and used in a manner that meets the needs of present and future generations without compromising the structure and function of the ecosystems with which they are associated.

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It reflects the fact that within a marine conservation area, you can have sustainable development activities that you would not have in a terrestrial situation.

So the two are different, and the language, therefore, is different.

The Chairman: I've two last requests for questions from Mr. Laliberte and Mr. Dumas. Then I guess we'll wrap up.

Mr. Rick Laliberte: The terminology is very crucial to me. I can understand why you wouldn't want to name them “marine parks”. You want to make sustainable use of it. That also means, though, do you want to create a marine park anyway, somewhere where there will be no sustainable use of that region or that park? I don't think there is.

Why don't we back up and have Fathom Five and Saguenay-St. Lawrence Marine Park say, “We're marine parks”. If I go to Banff, I know it's a terrestrial park. I know I can't go in there and start digging holes. I know that. But in Canada, I know, as does any Canadian—let's not fool anybody—if I go to a marine park, I can go fish, if it's allowed. There are certain limitations.

Why don't we just deal with a marine park in its reality and a terrestrial park in the way it is? Otherwise, with this conservation area we're getting involved with protected areas under DFO. Even the terminology is there. I think the worldwide network of representative marine protected areas comes in here as well. I think there are international terminologies that may be deemed...because you also want to sell this thing; we're protecting biodiversities.

Here's the other concern I have about internal waters. You have marine, which is supposed to be saltwater environment, but you also bring freshwater to Great Lakes....

I live in Lake Athabasca. If we want to contribute to the biodiversity and protect the biodiversity for the betterment of future generations, we would only be locked into a terrestrial park structure, which means we can't have any economic activities in that area. Coastal neighbours, brothers and sisters on the coast, can have marine parks, but they can fish and do whatever they want. On the internal side, we are very limited. We are exclusively terrestrial. We're limited in that we cannot do anything inside our marine park if we want to contribute to the biodiversity of this planet.

That's my concern. You're drawing lines and terminologies and definitions. Let's be front and centre and let's be fair with internal waters. You refer to internal waters here.

You know, ours is a landlocked province. We have no contribution to this.

Mr. Andy Mitchell: Let me answer to that in a couple of ways. First of all, in the MCA in terms of how they are created, they have zones. A zonal system will be in place. A particular core zone would prohibit a whole range of activities and would be conservation or protection, in the view you may want to take. There would be other zones within that same marine conservation area that would allow for sustainable development to take place.

So it isn't a monolith. Within the marine conservation area itself there can be different zones that have different levels of protection being provided. I think there is that flexibility. You may go to a marine conservation area, and there may be an area in that marine conservation area where there's a decision, made jointly by the heritage minister and the minister of DFO, that fishing would not be an appropriate activity. So that can occur.

In terms of what you're talking about in a marine conservation area, I also represent a riding that has an extensive inland lakes system. Under the legislation right now, there is nothing that would prohibit the establishment of an MCA, but it is not part of the systems plan that presently represents the policy of the government.

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So an MCA could technically be established anywhere, the way it's written right now, but we would not likely pursue it at this time because it's not part of the systems plan.

I think you're making an excellent point in that we have to clarify it. Whether that clarification happens in the preamble, where we say clearly what we're trying to deal with with an MCA, or whether we do it in some other way, I think the clarity needs to be there.

You're speaking to a point that, as I said earlier, is a valid point in that clarity needs to be brought forward. As the committee goes through clause-by-clause, it may have some ideas on how to arrive at that.

[Translation]

The Chairman: Mr. Dumas.

Mr. Maurice Dumas: First of all, thank you for pointing out the weakness of the word "favorise" found in clause 10(1); I too had circled this word. In this particular case, the word obligation is much stronger.

One brief question, Mr. Minister. I always go back to the issue of territory. This is a very important issue for us in Quebec. Does Canada not have the authority, despite everything, to proceed with expropriations?

[English]

Mr. Andy Mitchell: I would have to get back to you. I'm not familiar with that point in law, whether or not technically the federal government can expropriate. I would suspect that there is an expropriation power that is there for the federal government, but I'll give you a more precise answer when I have a chance to look into it.

In reality, what I'm saying is that it's not the intent of this legislation, and it is certainly not the intent of this government, to proceed to establish an MCA in an area of provincial jurisdiction without the consent of that particular provincial government. That's simply not something we're interested in doing.

As I said earlier, the majority of the areas where we want to have representation are in federal jurisdiction, and clearly undisputed federal jurisdiction. In areas where there would either be a dispute or they're clearly in provincial jurisdiction, we would have to work with our provincial counterpart.

From my discussions with my counterparts, most, if not all, of the provinces are very amenable to the objectives and goals that this legislation points out. Obviously, the Province of Quebec is concerned and interested in conservation and preservation as well.

Canadians, no matter where they live, are not particularly interested in governments having jurisdictional disputes. They're interested in governments protecting our natural environment. That's what this bill is all about, and that's what we're trying to accomplish.

[Translation]

Mr. Maurice Dumas: Thank you.

The Chairman: Before thanking the Minister, I would like to answer your question, Ms. St-Hilaire. The committee's legal advisor has given me a few notes taken from the book The Interpretation of Legislation in Canada by Pierre-André Côté, which we will send to you in French. According to this book, the preamble can be used in interpreting provisions of the legislation, however, should there be conflict between the two, the preamble does not override the provision. The preamble can be used to assist the court in interpreting the general intention of the legislation, but if there is a conflict between the two, the provision prevails.

[English]

Mr. Minister, I would like to thank you very much for taking the time and going to many lengths to satisfy the questions of the committee members, and for being very open about changes that might be brought in by us at a later date.

So I thank you very much for being with us today. It was really helpful.

Mr. Andy Mitchell: Well, thank you, and again, thanks to the committee for all your hard work.