ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, October 16, 2000

• 1533

[English]

The Acting Chair (Mr. David Pratt (Nepean—Carleton, Lib.)): Ladies and gentlemen, welcome to the environment committee. I have a very complicated series of technical instructions here, which start with banging the gavel, so I'm going to bang the gavel and start the meeting.

In the absence of both the chair and the vice-chair, I've been asked to preside over today's meeting. So pursuant to Standing Order 108(2), we are resuming consideration of issues pertaining to the protection of wildlife species at risk in Canada with respect to Bill C-33, an act respecting the protection of wildlife species at risk in Canada.

Today our witnesses are going to give us a concise overview of Bill C-33. I understand this will take approximately 45 minutes, after which we shall hear questions and hopefully adjourn no later than 5:30 p.m.

I would ask Karen Brown, assistant deputy minister, Environmental Conservation Service, to begin her presentation. Ms. Brown.

Ms. Karen Brown (Assistant Deputy Minister, Environmental Conservation Service, Environment Canada): Thank you, everyone, and good afternoon. We're very pleased to be able to appear before you this afternoon. We've tried to do a couple of things in the presentation that we've provided to you. One is to give a concise overview, not only of the species at risk legislative proposal but also a little bit about the accord and the context within which we find ourselves, and also to try to address some of the key issues that I know the committee has heard about and has actually been discussing with other witnesses over the last several weeks. So you'll find that there is a bit of both in the presentation.

• 1535

The way we'll start is to give a bit of an overview as to just what it is we're talking about: we are talking about wildlife at risk in Canada. As everybody knows, the number is quite familiar. There are currently 353 species on the list of species at risk, the large majority of which obviously includes the vulnerable assessments done by COSEWIC. The amount of effort that goes into the work that is conducted actually reflects the numbers. As COSEWIC continues to do its assessments and reassessments, we do find ourselves adding more species to the list.

The context in Canada for wildlife species and the responsibility for their direct management day to day is a fairly complex piece of machinery. There are a number of people who are directly responsible for managing wildlife.

At the federal level, clearly the aquatic species are the responsibility of the Minister of Fisheries and Oceans pursuant to the Fisheries Act, and he also has responsibilities under the Oceans Act. The Minister of the Environment has responsibility for migratory birds, as defined by the Migratory Birds Convention Act, and in addition the Minister of the Environment has a number of other pieces of legislation that he uses for wildlife management in Canada.

The vast majority of species are in fact the responsibility directly, day to day, of provinces and territories, and as well more and more responsibility is being assumed by wildlife management boards as some of these land claims are being settled in the north in particular. Each province and territory likewise has its own wildlife act and other legislation that overall contribute to the protection of species in general and hopefully species at risk in particular.

Likewise the picture with respect to habitat is somewhat as complex. There are many kinds of different owners of land out there, everything from federal lands...and included in that the broad marine aquatic areas, but obviously a big chunk directly by provincial governments under provincial crown lands, and private and municipal governments.

All of that is to say that the kind of situation in Canada, with the kind of Constitution we have, makes cooperation absolutely fundamental and absolutely essential for us to make sure we do the right thing both with respect to the management of wildlife species in general but also species at risk. We need cooperation amongst federal departments, some of whom are very large land managers, some of whom have direct responsibilities for wildlife management. Provinces and territories are crucial to our success in the long term, as well as our aboriginal people.

We certainly feel that from a habitat point of view as well, cooperation with resource sectors, people who manage large tracts of land, private landowners, is also fairly fundamental. The kind of approach that we've been trying to take both with respect to the accord itself and also with respect to the proposed bill is to try to build the kind of policy framework in Canada that actually ensures that people who have these direct responsibilities take ownership of those responsibilities and in fact are partners in the approaches we take.

The government set out a three-part strategy for protecting species at risk, of which this proposed bill is one part.

The first part, which was put in place back in 1996 is the National Accord for the Protection of Species at Risk in Canada. It actually unites all provinces and territories along with the federal government in commitments to protection of species at risk. It is a particularly important agreement, which was reinforced as recently as several months ago by first ministers who in their communiqué reinforced their commitment to the accord. It has formed the basis of a very important set of changes that have occurred since 1996. We've seen eight provinces and territories either amend, or substantially amend, or introduce new legislation to fulfil their commitments under the accord. I think in a policy context the speed and dedication that provinces and territories have shown to the accord is probably fairly unprecedented.

• 1540

The accord also reinforces the Canadian Endangered Species Conservation Council, which is the federal, provincial, and territorial ministers responsible for wildlife. They're very much part of the overall management framework, so that we can actually deliver programs directly for species at risk, linked directly to the work of COSEWIC, and a combination of recovery efforts. This work has been going on for some time, and we have the council working on a lot of these species at risk questions, albeit in the absence of a legal framework at this point.

The third part of our strategy, which is critically important, is our commitment to stewardship and incentive programs. You will recall that in the budget 2000 a commitment was made to $180 million for species at risk programming over the next five years, of which we have dedicated $45 million to stewardship. There have been quite a few projects that have been supported and announced publicly over the course of the last several months that are really key parts of us trying to build, and build on, a collaboration that we need with landowners and the private sector, and also some of our resource industries.

We've done quite a bit of consultation. Steve has probably done way more than me, having been involved in developing Bill C-65. Consultations around this discussion have been going on for some seven years, if not longer. We have continued to work very closely with provinces and territories, and other federal departments and agencies, to try to get input from all walks of life. There is probably not a group in Canada that has not expressed an interest in this particular proposal, as you already know and will likely hear more about.

We've had extensive discussions with aboriginal peoples, which in particular is where a very special relationship is required, in our view, in order to bring this whole mosaic into place. An aboriginal working group has been set up and in place for two years. When wildlife ministers met in Iqaluit in August there was an unprecedented meeting with first nations chiefs. In fact, in their own words, they felt it was an unprecedented consultation with respect to proposed federal legislation. We clearly are not finishing with that. We obviously need aboriginal peoples to continue to work with us as we start to think about how we actually do work on the ground.

We've provided a list of the people we've consulted with—the extensive consultations prior to the tabling of the bill. We've also included a list of those people we've had some information sessions with. Since the bill was tabled, we've had quite a lot of requests from people to provide technical briefings, information sessions, explanations—largely at the request of others—so that we can, to the extent it's possible, provide some technical assistance to their understanding of the bill.

To turn to the bill itself, the tabling of the proposed Species at Risk Act is an important commitment that was made and reinforced in the signing and ratification of the UN Convention on Biological Diversity. The purpose is very much to protect wildlife at risk from becoming extinct. But we're also very much committed to dealing with recovery and ensuring that other species do not become at risk. That was a very important issue for a lot of people who talked to us over the last couple of years.

The Species at Risk Act is a proposed bill that, when proclaimed, would protect all wildlife species, listed as being at risk nationally, and their critical habitats, wherever they occur, and will function as the cornerstone in the protection and recovery efforts that we feel are required.

This bill, like some in the environmental world, in fact has a number of ministers who are directly accountable for provisions in the act. I know you've heard some concerns being expressed about the fact that there are three ministers who are responsible in this bill referred to as competent ministers. It's very important to reinforce the fact that the Minister of Fisheries and Oceans has very large responsibilities for aquatic species and that the Minister of Canadian Heritage is responsible for a very large tract of federal land as well as about 17 species that occur nowhere else other than in Parks lands. With the Minister of the Environment's responsibility for migratory birds, it was deemed fairly essential that these ministers be very fundamental to the species of protection regime and that in fact requirements for species at risk be built very much into their overall management approaches and strategies. Clearly, we're trying to reinforce the importance of their commitment and the mobilization of their responsibilities under this bill.

• 1545

The Minister of the Environment retains overall responsibility for the administration of the bill, for its policy and for policy directions, which is over and above the issue of the three competent ministers.

Another series of questions relate to just how the Species at Risk Act enhances the capacity of federal departments. It does so in a couple of very fundamental ways. First of all, it provides a common legal list that will prioritize responses and activities in terms of species protection and also their recovery. It requires, for the first time, the preparation of recovery strategies, action plans, and management plans for listed species and it requires their implementation. This is a first; it applies to all.

It places conditions and restrictions on permits, licences, and agreements and it provides for the protection of listed species in their critical habitats. This is not business as usual for any of those ministers; neither is it business as usual for the Minister of the Environment with respect to migratory birds. There are very important new responsibilities and new powers being provided in the species at risk legislation.

The proposed bill also provides opportunities for conservation agreements and stewardship agreements, and it is a vehicle for hopefully obtaining necessary funding for the protection of species at risk. Those kinds of responsibilities are very much reflected in the proposed bill.

I'll quickly run through the next several sets of slides and basically try to give you an overview of how the bill is constructed. There are six basic elements in the bill and we list them here on slide 11. The first step is the science-based species assessment process conducted by our independent committee, which everyone knows as COSEWIC, the Committee on the Status of Endangered Wildlife in Canada.

The second part of the bill deals with the legal listing process wherein species are listed in the bill based on scientific assessment. Then there are the immediate species protection provisions as well as a comprehensive process for planning and implementing recovery actions for listed species.

There is an emphasis on stewardship measures as well, which is another basic element of the bill, and on the critical habitat prohibitions as well as the safety nets associated with that...and then the usual enforcement measures.

So I'll run through these in detail for you.

On the COSEWIC assessment process, most of you know that COSEWIC has existed for about 22 years, if not 23 years at this point. That group of qualified wildlife experts has been conducting assessments for that length of time, and they are drawn from wherever the expertise lies, including governments, wildlife management boards, universities, museums, NGOs.

The proposed bill would, for the first time, provide a legal footing for an independent assessment process that would provide advice to the government. COSEWIC currently does that job and currently makes its assessments and its determinations public, but other than the actual gaining of public knowledge of these kinds of things, there are no direct requirements to do anything about them. So in this case, then, for the first time, we would be providing a legal basis for the COSEWIC assessments.

• 1550

As you probably know, we've asked COSEWIC to review all of the species that are currently on its list, and they are doing so, based on new criteria it's adopted based on the International Union for the Conservation of Nature criteria. They're updating the information on some species for which they haven't had examinations for several years. To the extent we can do so, we're including community and aboriginal traditional knowledge.

The majority of these reassessments will actually be completed over the next year. We had a very large meeting in May in which 123 were reassessed and there are more to come in November. Most of these species will in fact have been reassessed by the time of proclamation, obviously. Those that are not reassessed within 30 days will have been deemed to be reassessed, as currently listed, unless there's a specific exemption required.

The COSEWIC assessments will continue to be made public. Their list will be made public. Their determinations will be made public. They will in fact be determining from a scientific point of view the status of those species.

The minister would recommend their listing to the Governor in Council in order to make them part of the legal list. This process of reassessment is, in our view, an improvement over Bill C-65, where a year was provided to complete the reassessments. Bill C-65 did not make COSEWIC's existing list the legal list. Governor in Council approval was in fact required under Bill C-65 as well.

The other major change that has been incorporated into the bill is a very important and deliberate process to include aboriginal traditional knowledge into the COSEWIC assessment process, which we are currently developing with some of the aboriginal working groups to try to determine how best to do that.

I know there has been a lot said in the media and there has been a lot said in front of this committee about the role COSEWIC should or could play with respect to the legal listing process. The current formulation sees the COSEWIC scientific assessments or scientific advice forming the basis for the minister's recommendation to the Governor in Council for the list of wildlife species. The decision-making process, as a result, will be quite open and transparent. With COSEWIC's list quite public and the minister's Governor in Council list quite public, you would be able to see any discrepancies immediately.

Certainly, at this stage COSEWIC is not necessarily designed to make these kinds of regulatory decisions or decisions that would have an immediate and regulatory or legislative consequence. Certainly, the government feels that because of the fairly important consequences that would accrue as a result of legally listing the species, as evidenced in the bill itself, including automatic prohibitions, prohibitions against killing and harming, and the protection of residence, the consequences are such that the government in its proper role has elected officials take those decisions.

Once listed, however, the threatened or endangered automatic prohibitions kick into place against the killing or harming of species. This is done directly for aquatic species, migratory birds, species on federal lands. Also there are prohibitions against the destruction of the residence.

The minister can also put in place a safety net with respect to prohibiting the killing or harming of species under provincial jurisdiction, but does so by applying to the Governor in Council. The test is fairly tight. If the minister does not feel there is sufficient protection being afforded, he must provide that recommendation to the Governor in Council. So all species would be guaranteed protection, on the one hand, directly for federal species, and on the other hand, indirectly for provincial species.

There's also an emergency authority provided in the early listing process to prohibit the destruction of critical habitats if there is a list of species facing an imminent threat to its survival or recovery.

• 1555

The first stage is the actual prohibition against killing or harming, and critical habitat protection on listing. The second stage after the listing process is for mandatory recovery strategies and action plans to be developed. These must be completed within one year for endangered species and two years for threatened species. Management plans for vulnerable species must be done within three years. Obviously, when we think about the numbers of species for which we would be developing recovery plans, particularly as you think in landscapes, we'll want to be able to ensure that we can do so at an ecosystem level and/or use the multi-species approach to the extent that it's feasible to do so.

We're obviously very concerned about ensuring that we are using an integrated approach, particularly when we think about particular land areas where we may in fact have eight or ten species that may be at risk or that require recovery actions. We'd like to have an integrated approach, particularly when dealing with private landowners, farmers, etc. The flexibility exists in the bill to allow for ecosystem approaches as well.

To the extent possible—and when we say that, we mean we will sometimes not necessarily be able to get everybody's agreement—all of these things will be done in cooperation with the provinces, the territories, aboriginal organizations, wildlife management boards, and all those directly affected. I guess the key thing to keep in mind here is that if you don't get agreement with any one of those people, the question you have to ask yourself is whether or not you should hold up the process as a result of not seeking agreement. We therefore tend to use expressions like “to the extent possible”.

On recovery strategies and recovery action plans, I think there has been a fair bit of confusion about what is intended around those two pieces in this proposed bill. We see them as two steps and one recovery team, the first step being to do the scientific determination of what's feasible and what the scientific objectives are, and the second step being to be able to deliver action plans to actually implement what you think you can feasibly do from a scientific point of view. In fact, we do think there may be numbers of different actions plans required. We never know at this stage. We have some experience with doing recovery, but not as much as perhaps we will have in the future.

Clearly, as is the case with most bills related to wildlife, you're talking about biological systems, you're talking about biological entities, you're talking about trying to design a recovery strategy and a recovery process for everything from lichens to whooping cranes to fish. It's really impossible to try to define exactly what those needs are. We have tried to define what we think the core set of requirements would be, again providing ourselves with a little bit of flexibility, in that as we learn we would be able to put in place the right kinds of processes. It took us a long time—twenty years—to discover where the nesting site for the whooping crane was in the north, and it took us until last year to discover where the burrowing owl overwinters on the coast of Texas. Some of these things take quite a bit of time, and it does indeed take a fair bit of patience to figure out what all of these critters are doing at any one part of their life cycle.

The stewardship portions of the proposed bill have been viewed by many as being absolutely fundamental to the success of this overall approach. Conservation agreements are provided for, wherein we can enter into agreements with governments, organizations or people, for that matter, to protect species at risk in their habitats and also to develop and implement recovery strategies. We certainly see that these conservation agreements and the provision of some assistance by way of funding, where necessary, for such things as conservation easements and covenants, are a really crucial way for us to actually protect quite a lot of habitat. We have had quite a bit of experience doing this over the last ten or twelve years. We've been working with landowners on the North American Waterfowl Management Plan, and at this stage I think we have a fair idea of exactly what kinds of challenges we'll face with respect to trying to do stewardship agreements.

• 1600

As I said a few minutes ago, we have actually announced quite a few of our first-step stewardship projects. We've also recently rolled out our new ecological gifts program, which was provided for in budget 2000, which will also help to have donations of privately held lands that are classed as ecologically sensitive.

Conservation agreements and stewardship measures we firmly believe are the front line in a preferred choice to protecting critical habitat, a basic principle that applies to both lands and waters. As a backstop, the species at risk legislation requires the minister to actually put in place prohibitions on the destruction of critical habitat if there is not adequate protection provided by another act of Parliament on federal lands, or, in the case of provincial lands, if provincial legislation or regulation is not adequate, whether or not there is the conservation agreement in place that would adequately protect those lands.

In that way, what we've tried to do is ensure that the right people do the right thing first, that the landowner, the private landowner, through a voluntary arrangement, whether it be a conservation easement or a donation or whether it be an agreement with the federal government, can ensure the protection of that land. Provinces and territories, for example, could set aside lands, either through zoning changes or by using protected areas, parks, however they choose. The same thing would be true for federal lands and fisheries. Under the Fisheries Act we could use those kinds of powers.

In the event that none of those options worked, the species at risk legislation would provide for a safety net that would allow the minister to determine whether or not action was required on his part. At the end of the day, the bottom line is that that protection would be provided if the habitat were threatened.

The species at risk legislation requires the minister to report in the public registry on those steps taken to ensure the protection of critical habitat within 180 days and then subsequently 180 days thereafter. Sometimes these negotiations take time. Sometimes working out covenants and easements takes time. But the thought is that for most areas, when we define critical habitat we will, within the borders of that definition, have a variety of different landowners and land uses within those areas. We anticipate that there will be private lands and provincial crown lands and a mixture of kinds of tools that we would actually require.

Bill C-65 did not in fact provide for critical habitat protection outside of federal lands. So in this regard the proposed species at risk legislation is much more extensive in terms of its protection.

The proposed species at risk legislation also provides authority in the act to develop a compensation scheme and to provide for compensation. As you know, the minister has asked Peter Pearse to provide him with some advice on the scope and form of this compensatory regime. Peter has been working diligently. There was an article in the Edmonton paper this morning, I think, a little bit of a report on what work he has been doing and some of the challenges he's faced in doing that work over the course of the summer. We are expecting his report to be available to us, hopefully, early next month, although it's not final yet, and that it would be made public thereafter.

On the basis of Peter's report, obviously, we very much need to do more consultation, if you like. I mean, this has been on the basis of a lot of input to Peter from a lot of interested people. We will be trying to put together what a proposed regulation would be like, and then also have further discussions with Canadians about what that regulation should look like.

The species at risk legislation doesn't actually require it but we would plan to have that regulation ready before any proclamation or royal assent would go into place. That's pretty fundamental.

• 1605

There are a couple of other key issues that people have expressed interest in and/or concern about. The first is with regard to project review. Environmental assessments for projects required under the Canadian Environmental Assessment Act will have to take into account the project's effects on listed species and their critical habitats, and measures must be taken to avoid or lessen these effects and to do monitoring. As a result, the species at risk bill actually proposes a consequential amendment to the Canadian Environmental Assessment Act definition of “environmental effect” to include a listed species and its critical habitat and to make very clear that process is going to require a special look at species at risk.

Finally, the process throughout the bill, pretty well every step of the way, provides for a very open and transparent process with regard to assessments as well as recovery planning. All documentation associated with every step of the process will be required to be published in the public registry, including criteria COSEWIC uses and their assessments, status reports, and the like. There is a provision included in the species at risk legislation that will allow citizens to apply to have a species assessed, to comment on recovery strategies, and to apply for an investigation, to name a few.

With that, I think I'll stop there, and I'd be happy to answer any questions.

The Acting Chair (Mr. David Pratt): Thank you for that very comprehensive presentation, Ms. Brown.

I have a list of questioners, starting with Mr. Herron.

Mr. John Herron (Fundy—Royal, PC): Thank you very much for your presentation. I think it will be helpful as we move forward and remember your testimony after the election.

A voice: When you're the minister.

Some hon. members: Oh, oh!

Mr. John Herron: No. Let's not get too carried away here.

Under Bill C-65, from a listing perspective, once a species was on the COSEWIC list after the mandatory review that would take place in the beginning, which you referenced.... Now it's going to be done over a one-year period. It would have every species that's on the list reassessed within their first year. But Bill C-65 made the COSEWIC list the mandatory list.

Ms. Karen Brown: No, Bill C-65 required Governor in Council approval of COSEWIC's list to become the legal list.

Mr. John Herron: That's the overall list, but what about one for every new species?

Ms. Karen Brown: It's the same process.

Mr. John Herron: Is it Governor in Council approval every single time?

Ms. Karen Brown: Yes.

Mr. John Herron: With regard to mandatory prohibitions on federal lands, was that in place in Bill C-65?

Ms. Karen Brown: It actually wasn't mandatory and automatic. It assigned responsibilities to the individual ministers so that if needs were identified in the course of developing recovery plans, they could actually develop regulations that would protect that land.

Mr. John Herron: So what changed between now and then for you to change that particular position?

Ms. Karen Brown: It wasn't mandatory in Bill C-65, and it's not mandatory now in the species at risk bill.

Mr. John Herron: Under Bill C-65 there were no prohibitions on federal lands.

Ms. Karen Brown: The approach—

Mr. John Herron: You're saying that mandatory prohibitions for a listed species on federal lands was not in Bill C-65.

Ms. Karen Brown: Maybe, Steve, you can give the details on the way it was structured.

Mr. Steve Curtis (Associate Director, Canadian Wildlife Service, Environment Canada): I assume you're talking about habitat rather than—

Mr. John Herron: Yes.

Mr. Steve Curtis: Bill C-65 provided that in the recovery planning process, the need for a regulation to protect habitat be identified in that part of the cycle. Where in an approved plan a need for regulation has been identified, then there was a requirement to proceed and implement that regulation. That's essentially what Bill C-65 provided.

Mr. John Herron: What did you hear to make you make that particular change?

• 1610

Mr. Steve Curtis: The approach in Bill C-33 is not all that dissimilar, quite frankly. In the recovery strategies and action plans there's a need to identify critical habitat for listed species to determine what's in place to provide protection for that habitat. The legislation establishes a prohibition against the destruction of critical habitat on federal lands unless there's something already in place that protects it. It is a GIC regulation. In Bill C-65 it was a ministerial regulation. That's the only difference.

Mr. John Herron: Just to change topics one more time, under Bill C-65 prohibition is applied automatically on a listing of international cross-border animal species. Given that the vast majority of species at risk in Canada are cross-border species, how would you address those people who are concerned about that particular point?

Ms. Karen Brown: The species at risk proposal is far superior to the Bill C-65 proposal. You noted that the emphasis was on international animal species. That was a weakness. It did not include plants or anything where the range extended across the border. The species at risk proposal extends to all species, not just animals. It doesn't distinguish. It really doesn't matter if it's international, provincial, or interprovincial.

Mr. John Herron: But a lot of plants don't walk across the border.

Ms. Karen Brown: A lot of animals don't walk across the border. Part of the challenge was trying to determine whether an international species was one that flew across, walked across, or straddled. Was it populations that straddled, or was it things that migrated physically across borders? We struggled with that. Of course, the word “animal” was important because it doesn't include other kinds of species.

Mr. John Herron: Okay. Thanks.

The Acting Chair (Mr. David Pratt): Thank you, Mr. Herron.

Mr. Knutson.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): I don't want to get into a debate about Bill C-65 and this bill, but I'd like a clarification on this point because I'm confused. When you say that Bill C-65 didn't have mandatory protection for species on federal lands, are we talking about Bill C-65 as reported back to the House of Commons by committee and unamended by the House of Commons? There were a couple of versions of Bill C-65.

Mr. Steve Curtis: You didn't want to go there, but you asked the question anyway.

Mr. Gar Knutson: Other people are telling me that it did provide and—

Mr. Steve Curtis: Being specific, I think it was clause 42 of Bill C-65 that required that within 180 days, I think it was, after the approval of a recovery plan, where that plan identified the need for a regulation, including a regulation protecting habitat on federal lands, that regulation needed to be put in place. The only thing the government amendment process did was just add the idea of any needed regulation. So what you have is a process—

Mr. Gar Knutson: The committee did not change the word “may” to “shall” in terms of requiring the government to protect habitat on federal lands. You're telling me that amendment either didn't exist or, if it did exist, it didn't survive—

Mr. Steve Curtis: I believe the standing committee on Bill C-65 did make it “shall” for putting in place a regulation where a recovery plan had called for one. So that was a “shall”, yes. In Bill C-33 it says the minister must make the recommendation to the GIC for such a regulation.

Mr. Gar Knutson: That's not the same thing.

Mr. Steve Curtis: Not exactly, no.

Mr. Gar Knutson: For people who believed there was mandatory protection in the last legislation, at least as far as it got before being truncated by the election, that view isn't a dishonest one. There's a genuine belief out there that it did have mandatory protection.

Ms. Karen Brown: As amended by the committee but not accepted by the government.

• 1615

Mr. Gar Knutson: My understanding is it was accepted by the government. Anyway, it's academic—

Mr. Steve Curtis: It's one word exactly.

Mr. Gar Knutson: It's somewhat academic, but why not put it in?

If I could take you to page 14 of your briefing note, which talks about immediate species protection, the first paragraph in the box says:

Once listed as threatened or endangered, automatic prohibitions apply against killing or harming aquatic species, migratory birds, species on federal lands, and against destruction of their residences....

What's the big deal if we bring into effect that “residences” would read “habitat”?

Ms. Karen Brown: The big deal really is our ability, from a biological point of view, to even know what that critical habitat is. It is physically almost impossible for us to know, in order to be able to define accurately for the purposes of any kind of legislated regime, what critical habitat is. As a result, you would end up with all of southeastern Ontario as being critical habitat until you could define precisely where that animal or critter existed.

Mr. Gar Knutson: Can't you make that—

Ms. Karen Brown: It's a lot easier for plants, but it's not that easy for most large-animal species.

Mr. Gar Knutson: With respect, we know all of southwestern Ontario isn't critical habitat.

Ms. Karen Brown: For some birds it may well be.

Mr. Gar Knutson: I live in southwestern Ontario. I know my—

Ms. Karen Brown: Southeastern.

In some cases, in some birds and a lot of migratory species, it's very difficult to define what critical habitat is until you actually do a fair bit of work. One of the big challenges we have is that an awful lot of these species don't actually get a lot of the attention they deserve until they are actually listed, until you actually get out there and do some of the science that's going to tell you where that critical habitat is.

So when you're talking about putting in place prohibitions, because you then are responsible for enforcing those prohibitions, you want to have a pretty clear idea of where that critical habitat is, anywhere.

Mr. Gar Knutson: Would you agree that there are provinces that have put protections for habitat in their legislation?

Ms. Karen Brown: Yes, they certainly have. One of the challenges from a public policy point of view has been, continues to be, and will be the extent to which they put in automatic prohibitions on listing. The more automatic prohibitions you put in place, the more pressure there is on the listing process. Those provinces that in fact have automatic prohibitions for the protection of critical habitat rarely list anything for that very reason.

It's a very difficult balance. There's no question about it. It's not one that I think, by any stretch of the imagination, has a magic solution. You have to weigh the pros and cons of the extent....

Mr. Gar Knutson: Okay. Let me ask another question.

The Acting Chair (Mr. David Pratt): Mr. Knutson, this will be your last question in this round.

Mr. Gar Knutson: Okay. I have lots more.

The minister has stated in his presentation that if we put in a hierarchy of protection, I think he called it, that would make the bill more challengeable under constitutional law. I wonder if you could flesh out that reasoning and take me through the case law that would support that view.

I'm not an expert. The most recent case I read was the Hydro-Québec case. It clearly gave the federal government constitutional authority over the environment as an extension of the criminal law power. This concept, that if we set up a hierarchy we're going to leave ourselves open to part of the bill or part of the law being challenged or struck down, is new to me. Can you help me out here?

Ms. Karen Brown: I'm not a lawyer. I honestly don't know what the case law is. We can certainly get back to you on that.

Mr. Gar Knutson: How about your lawyers on staff here in the room?

Ms. Karen Brown: We can certainly get some information back to you.

Part of the challenge we faced when we were setting up policy framework that we tried to develop around species at risk was in fact to try to think through what the requirements would be without having to think through particularly what status that land had, whether it was private or provincial or the like. The whole notion that we were trying to build a framework wherein the people who were responsible for managing that land clearly did the right thing, and then only brought in the minister and the safety net, the criminal law part and the safety net, in the event they didn't do the right thing, is the approach you'll see throughout the bill.

• 1620

In those cases, we certainly know we do not have a lot of provinces in this country happy with the approach, particularly on the critical habitat side. You will have heard and you will probably continue to hear concerns expressed about the extent to which they feel we are intruding.

Mr. Gar Knutson: I haven't, actually. Not a word.

Ms. Karen Brown: They've certainly let us know. We've actually been threatened. Well, “threatened” is probably too strong a word, but we've been told that we'll be challenged constitutionally.

Mr. Gar Knutson: Once again, the federal government will be sued, like guns and like Hydro-Québec.

Ms. Karen Brown: Yes. But the prohibition on critical habitat is based on the criminal law power, and it very much is taking it to a place that was not in Bill C-65.

Mr. Gar Knutson: I'm out of time.

The Acting Chair (Mr. David Pratt): Mr. Reed.

Mr. Julian Reed (Halton, Lib.): Thank you, Mr. Chairman.

Ms. Brown, I'd like to look at the process of this bill a little bit from the perspective of, say, a proponent of a project in an area. Some questions jump out at me. Who does what in terms of identification of species? Who pays for it, at whose cost? Are the species already identified in an area or are they not, or will it be the proponent's responsibility to do it, to provide the free information to government?

Supposing that happens. What kind of timeline will exist for the government to respond to somebody who wants to do a project and has an investment liability sitting there gathering interest?

I agree very much with the cooperative versus control and punishment thing. I think that's absolutely essential, and the more I talk to people who are knowledgeable about the American legislation, I realize that in many cases it doesn't function properly at all. But I am concerned that when it gets down to the thing, when a proponent is doing something...right now when somebody does a project on a river or close to a river, that proponent is expected to do all the fish studies, all the aquatic studies, and so on, and submit it to whatever branch of government it has to be submitted to, very often only to have it challenged and have the quality of it challenged, at the cost and at the time cost of the proponent. So what I see happening if it's not dealt with is that it could prohibit or inhibit the development of this country.

Ms. Karen Brown: Let me start by saying I'm not going to be able to comment extensively on the Canadian Environmental Assessment Act or on the features therein. But let me also say that with the consequential amendment that's being incorporated into the proposed bill, it would clarify the requirement that projects that are in fact being assessed under the Canadian Environmental Assessment Act would have to take account of species at risk.

So in that context, if a proponent is seeking to get approval and it triggers the Canadian Environmental Assessment Act, yes, in fact some information would have to be provided to the regulator, or the money person, or the person who's going to provide that land, so that they can make that assessment, so that they can determine whether or not there would be significant adverse effects in general and also on species at risk.

Mr. Julian Reed: In practice at the present time—and I'm not talking about a federal act here but where provinces have jurisdiction with the Environmental Assessment Act—there is a judgment call made as to whether it's a major or a minor under environmental assessment, particularly in Ontario. I'm thinking about Ontario. But then the bureaucracy will tend to say, in order to do the old CYA trick, that everything's a major until proven otherwise. Consequently, as an entrepreneur or somebody who is doing some sort of worthy project, you get into the dilemma of how much time, money, and investment have to be written into the cost of that project in order to satisfy the caution that's placed on it.

• 1625

Ms. Karen Brown: I really can't comment on the Ontario assessment process. I know nothing about it.

Mr. Julian Reed: Thank you.

The Acting Chair (Mr. David Pratt): Ms. Redman.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chairman. Not dissimilar to my colleague's questioning, I guess all of us have looked to some of the unintended consequences that have happened with the legislation in the United States. I think what I find very compelling about this legislation is the fact that there is cooperation between the farmers, fishermen, and aboriginal peoples, as well as loggers and private land owners.

My question is actually fairly simple. In your opinion, will the proposed legislation do the work on the ground? Is this what we need? Is it workable?

Ms. Karen Brown: The short answer is yes. I think what we have tried to do is learn from some of the experiences that the folks in the U.S. have tried to grapple with over the last 20 years. We've spent a lot of time with our U.S. counterparts—a lot of time—to try to understand the kinds of dilemmas they found themselves in, in a reasonable way. We've tried to build this legislative proposal so that it does incorporate and reinforce, in the first instance, the collaborative and cooperative approach; that it recognizes that there is a valid use of voluntary measures, such as conservation agreements and easements; and that there are others who have responsibility for protection of habitat, whether they be provincial or municipal governments, and they should do the right thing first, or be given the opportunity to do the right thing first. The federal government would in fact reinforce that the way the legislation is written.

Our feeling is...and we've had somewhat cautious support, if you like, from a very large number of land owners in particular, largely because of the recognition that a collaborative and cooperative approach is critical—voluntary measures in and of themselves.

The U.S. has been trying to re-authorize their bill for the last 12 years. They have been totally unsuccessful, and they have, as a result, been trying to put in place administrative interpretations of some of the habitat issues they face down there, and have in fact been watching with a great deal of interest how Canada has tried to grapple with those very issues that they've been unable to resolve over the last 12 years.

Mrs. Karen Redman: One of the components of the legislation we're discussing is the assessment of species at risk, as well as the action that needs to be taken to recover them. We've talked about prohibitions in the regulations, with large penalties. Assessment and recovery have taken place in the last 20 years, but I'm assuming it's somewhat ad hoc, and I'm wondering if environment officials who have to implement this legislation have the flexibility—and whether it's warranted through the experience you've gained over the last 20 years—to make this effective when we actually come to implementing it.

Ms. Karen Brown: That's a good question. Probably on the assessment side we have way more experience than we do on the recovery side, because COSEWIC has been in place for 22 years. Clearly what we want to do is make sure the legislative framework that goes in place supports the work it does. But COSEWIC becomes the engine that drives this entire legislation. I think we need to keep in mind that the resulting work of that committee is accepted by the minister and the government, and in fact drives the entire legislative framework. We need to make sure we don't hamstring that committee, or put it between a rock and a hard place.

• 1630

On the recovery side, our experience is limited. We've been doing active recovery teams for about 12 years through the renew process. There are in fact many, many things we don't know about the science of recovery. For example, we've just invested some money in the Vancouver Island marmot recovery process because once these little critters grow up in the Calgary zoo, instead of escaping into the neighbourhood, which they did last year by chewing through the bars, we're not sure we know how to reintroduce them successfully into the wild.

So what do we need to know from a scientific point of view? There are huge unknowns in this. And this is a fairly intensive undertaking that we're putting forward. We're going to have 353 species that will have some sort of management plan and/or recovery plan. There's lots we don't know.

We have a fair bit of experience with the large, visible mammals and some of our migratory birds. But when you get down to some of the other species, whether they be reptiles, snakes, or plants, you're really pushing your luck in terms of knowing whether or not you're doing the right thing.

I think the legislation, hopefully—from a public servant's point of view and from a biologist's point of view, which I am—would provide the framework within which you could actually adapt and move without being too restricted, because you never know where recovery is going to take you. You really don't.

Mrs. Karen Redman: I guess these comments lead me to immediately thinking about the five-year review that I know is built into that. I don't know if you want to comment on that, but it strikes me that's a very meaningful part of a new process as we enter into it in the legislative framework.

Ms. Karen Brown: It's true, the five-year review becomes critically important.

I guess the other thing is that there's always this tension between how much you put into the legislation itself and what you allow to go into a regulation in a regulatory regime. But from the point of view of recovery teams who are going to be learning new skills—and there will be many of them—the idea is that we could have a little bit more flexibility through either guidelines or regulations, and then there are those things that really need to be changed, improved, fixed, or added in the legislation, and you would want to be able to use a combination of all of those things. The five-year review and others would give us the opportunity to do that.

Mrs. Karen Redman: Thank you.

The Acting Chair (Mr. David Pratt): Thank you, Mrs. Redman.

Mr. Knutson.

Mr. Gar Knutson: Thanks very much.

Perhaps I could take you back to the box on page 14 of your brief. It says:

Once listed as threatened or endangered, automatic prohibitions apply against killing or harming aquatic species, migratory birds, species on federal lands....

What would happen if we included cross-border species so we gave the grizzly bear the same protection we give the bird under the Migratory Birds Convention Act? That was included in that first bullet.

Ms. Karen Brown: They are included in the second bullet. The provincial ministers responsible...let me just phrase it a slightly different way.

In the wildlife acts, by and large, in each of the provinces across the country you're prohibited from killing or taking any animal species without a permit now. Those legislations, if they haven't got those kinds of prohibitions in place, are actually amending to make sure they do. Through those two pieces you would have a complete web that would ensure there was no killing. Automatically it would happen.

Mr. Gar Knutson: That's only if the provinces cooperate.

Ms. Karen Brown: It's built right into their legislation. You cannot take a deer without a licence. You cannot kill a bird without a licence. Right now I think we're pretty close to being 100% covered by most of those. The same thing is true for migratory birds. The same thing is true...thou shall not fish...those kinds of things are in the Fisheries Act. This gives you double protection. What it does is actually put in place another layer that says if those kinds of automatic prohibitions don't exist either in federal or provincial legislation that is used to actively manage the species, this goes in.

Mr. Gar Knutson: So can I take it from your answer then that if we were to include cross-border species under bullet one, nothing would happen?

Ms. Karen Brown: Cross-border species are not entirely always federal, by any stretch of the imagination. What would happen is we would probably end up with a legal challenge.

• 1635

Mr. Gar Knutson: Do we have some case law that suggests that cross-border species are not federal jurisdiction?

Ms. Karen Brown: The advice that we have is that we could protect cross-border, so-called international species, on the basis of criminal law power, but there's no specific head that would grant you otherwise other than criminal law power.

Mr. Gar Knutson: So we can protect them under criminal law power?

Ms. Karen Brown: Yes, and they are protected under criminal law power. They're protected by the first bullet if they are international, because migratory birds are international. In the second bullet, if the provincial government doesn't protect them, then the federal government will.

Mr. Gar Knutson: I'm a little bit confused by your answer. I think you're saying we can't include them in bullet one because it's not our jurisdiction. Is that what you're telling me? I just want to go back to my original question. What would happen if we put them in bullet one?

Ms. Karen Brown: First of all, migratory birds are international and cross-border, right?

Mr. Gar Knutson: Yes.

Ms. Karen Brown: So there are a number of species that are captured under there already, right?

Mr. Gar Knutson: Yes, all the birds covered under the Migratory Birds Convention Act. I understand that.

Ms. Karen Brown: Right. The second bullet covers them as well, because if the provincial minister doesn't cover them, then the federal government will.

Mr. Gar Knutson: Okay, we seem to be going around in circles, because I just asked what would happen if we amended the act to include—

Ms. Karen Brown: I'm not sure what you mean by asking what would happen.

Mr. Gar Knutson: Well, you're sort of suggesting the act might be struck down in law as unconstitutional. I'm—

Ms. Karen Brown: You'd certainly have provincial concerns expressed, yes.

Mr. Gar Knutson: They told us they're going to sue us anyway.

Ms. Karen Brown: That's right.

Mr. Gar Knutson: Anyway, let me go to another point, if I can...oh, Mr. Curtis wanted to jump in.

Mr. Steve Curtis: I was just going to add that there is no absolute legal impediment to us doing what you described, Mr. Knutson, but we cannot protect species at risk by acting alone. We need cooperation with the provinces.

We have an accord, a political agreement, with the provinces that sets out various conditions. They have said that they will act to protect every species that COSEWIC lists as threatened and endangered, so we want to hold them accountable to that and we expect them to act. That's the way it's designed. If they don't, then we have the capacity to step in to fill the void. That's what the safety net's about.

So that's the approach. It's to work effectively with the provinces and to make sure that, at the end of the day, there are no gaps and every species is protected.

Mr. Gar Knutson: Okay. On the issue of the rollover of the list, what would happen if we took the work that COSEWIC has done to date—the 135 or 136 that they've re-examined and on which they've given their report—and we included that as an appendix to the act so that it came into force the day the act was proclaimed?

Ms. Karen Brown: That's one formulation. The government is proposing that the decision be taken by the Governor in Council, through the regulation-making process, so that the benefit-cost assessment would be done at that time.

Mr. Gar Knutson: Is there some disadvantage to taking that initial list, as complete as it might be...?

Ms. Karen Brown: Well, there would be a number of factors that you'd have to consider in determining whether or not you were going to include them on the legal list. There are 123 at this point.

Some of the bigger issues right now for us would be whether we in fact have all of these prohibitions in place; whether they are ready to go; the extent to which existing pieces of legislation do protect them or not; or whether we have worked with provincial governments to ensure that kind of due process, which you would do through the Governor in Council listing process as well.

Mr. Gar Knutson: How long will that take?

Ms. Karen Brown: With the way the bill is structured, COSEWIC must report within 30 days after the bill is proclaimed in order to provide its reassessments. We expect it would be no longer. In fact, we would probably bulk-batch most of those assessments through no longer than any normal regulation-making period, so you'd have a part one.

You also have to keep in mind—

Mr. Gar Knutson: Sorry, but a normal regulation period takes how long?

Ms. Karen Brown: About 90 days.

Mr. Gar Knutson: From the—

Ms. Karen Brown: It's 30 days pre-publication and another 30 days to part two.

• 1640

Really, the other thing on which we've gotten quite a lot of submissions and a lot of interventions is making sure there's a very wide public understanding of which species are in fact being legally listed. In that case, if you do harm or kill any of the species that are listed, you would then be subject to the enforcement provisions of the legislation.

A lot of the people who have talked to us have indicated that they would like to see a much more extensive information process that sees us notifying landowners, farmers, and resource sector people when a species does in fact get listed. Part of the regulation-making process ensures that we have a very wide and open process to include the list.

The Acting Chair (Mr. David Pratt): Mr. Knutson, can we go to Mrs. Redman now? We can come back to you after Mrs. Redman asks her questions.

Mrs. Karen Redman: Thank you, Mr. Chairperson.

I know we've already acknowledged that you're not lawyers, Ms. Brown, and I know there are environmental lawyers who have looked at this, but further to Mr. Knutson's questioning, this whole piece of legislation has been predicated on balance. He has basically thrown out the idea that if this is going to be challenged, why not push the envelope? I'm assuming there has been a balance and there has been consultation. I just wonder if you could speak about that issue, or if it's something we should have the lawyers get back to us on.

Mr. Gar Knutson: Lawyers don't know anything about balance.

Ms. Karen Brown: We would certainly argue that the protection of species at risk is first and foremost in this legislation, because a lot of people will misconstrue balance to be compromise. We don't sit here in front of you and propose legislation that would in any way compromise the protection of species at risk.

Clearly, as I said earlier, there are a number of “balances” in this legislation, most of them public policy balances, the extent to which you put in place automatic prohibitions on listings. That in turn puts enormous pressure on what the scientific assessment process is.

We thought about that long and hard. We don't want the scientific assessment process to become politicized. We don't want the listing process to become heavily politicized. The people who sit around that table at COSEWIC are scientists. They should do their scientific job and should provide their scientific advice, and elected officials should make decisions that are fairly important with respect to commitments and undertakings on behalf of the federal government.

Those kinds of balances are inherent in this, as are the balances associated with collaboration and trying to encourage collaboration, meaning the right people doing the right thing. Environment Canada and the Minister of the Environment cannot protect all species. No legislation can do that. There isn't enough money in Mr. Martin's budget to do that. We really do need the collaboration of all the private landowners, all the farmers, the provinces and territories, because we're all in this together. Those kinds of balances are inherent in the way the strategy has been built, and also in the way in which you actually see the legislation drafted. We do believe that's important.

Mrs. Karen Redman: Just to tie it back to whether or not there will be court challenges, this legislation has been built on defensible positions, not watered-down positions. They're positions for which we know we're soundly where we should be, taking into account the public good and public policy.

Ms. Karen Brown: Absolutely. The Department of Justice gets the final say on those kinds of things, and that very clearly is the case here.

The Acting Chair (Mr. David Pratt): Mr. Reed, and then Mr. Knutson.

Mr. Julian Reed: Is that okay, Gar?

Mr. Gar Knutson: That's fine. We have until 5 p.m. here.

Mr. Julian Reed: You have outlined the need for the cooperation of farmers and landowners, those people who use the land.

The aquatic species and the health of the aquatic species may be more dependent on urban Canada than on rural Canada. There's a notion that somehow, when you've addressed the burrowing owl and the grizzly bear and a few things out on the land, that's done it. In actual fact, though, I was told there are more aquatic species in danger than there are land species in danger. That may not be true, but I'll tell you that in Lake Ontario and the St. Lawrence River, there are a heck of a lot of aquatic species that are really being beleaguered because of urban Canada, not rural Canada.

• 1645

I'm very concerned because I don't think this legislation addresses that responsibility. I'm not sure whether it does or not, but I'm not sure what this is going to do for a recovery program, for the beluga whale, for instance.

Ms. Karen Brown: The beluga whale happens to be one species where we do have a bit of a recovery program going on, but it would in fact formalize the recovery process. It would legislate the implementation thereof. But just as with any of these very large, complex issues, your point is a very valid one. You have seen over the years and you would continue to see.... For beluga whales, for example, one action the government must take is to decrease the amount of toxic chemicals that are coming out of Lake Ontario flowing into the St. Lawrence River—

Mr. Julian Reed: Precisely.

Ms. Karen Brown: —and the St. Lawrence Action Plan, which has been in place for the last 15 years, renewed three times, a federal-provincial program, has gone quite deliberately about reducing toxic inputs into the St. Lawrence River, and this has contributed enormously and substantively to reducing the contaminant loads on the beluga.

Mr. Julian Reed: The growth areas around Lake Ontario are still putting pipes into the lake to draw water and are still discharging sewage effluent back into Lake Ontario. Now, if that's the program for recovery, I have to see what it is.

Ms. Karen Brown: The Lake Ontario ecosystem is one that has been debated beyond belief over the last 25 years. The ability for us at this stage to even know exactly from a scientific point of view the cause and effect relationships between what would make a fish species recovery is really pushing our scientific knowledge, I can guarantee you. Everything from UV radiation, acid rain, climate change, and all of those other things also have very important inputs into biological processes. So when you're dealing with scientific advice on these kinds of recovery plans, quite frankly, your scientific process is like anything else. It's like an economic forecast; it is a forecast and you revise accordingly. The efforts we've taken, for example, on something like the whooping crane have been 25 years in the making, and we're still discovering new things. So the scientific process....

We have taken 25 or 50 years to get Lake Ontario to where it is and it's going to take us another 25 or 50 years to get it back. And in the course of doing that we're going to have to grapple with many other major changes, including 120 aquatic species, invasives, in Lake Ontario, so there are many different things that are going to cause us to have to adjust, see how part of that plan went, readjust, and continue on. These are biological systems. Sometimes it may require us to take a look at effluent discharges; it may require us to take a look at specific applications of goodness knows what in any one area. Aquatic systems are complex at best, but your point is a very valid one.

The Acting Chair (Mr. David Pratt): Thank you, Mr. Reed.

Mr. Knutson.

Mr. Gar Knutson: Thank you.

Mr. Chair, I am for balance and cooperation too, and voluntary compliance is sort of a first line. Perhaps I can take you back to the box on page 14. I'm not sure if it's in your written text, but, if I may quote you, you said “The test is fairly tight”, to kick us from bullet one to bullet two. You mentioned that if the minister feels the provinces aren't doing their job then he or she is obligated in law to request the prohibitions. I don't know if you have a transcript of what you said—

Ms. Karen Brown: I said something to that effect. I'm just asking Steve if he has the wording. It says, “The minister must request prohibitions be applied against those other species when not protected by provincial or territorial legislation.” That's the test.

Mr. Gar Knutson: I thought you said the test was “If he feels...”—

Ms. Karen Brown: No. “Of the opinion”, I believe—I'm not sure exactly what the words are.

Mr. Gar Knutson: I think those are the words you used.

• 1650

My comment is this. If it's just based on how he feels, that's not a tight test at all. That's entirely subjective and it's an absolute discretion that would be unchallenged—

Ms. Karen Brown: Can I read you subclause 34(3)?

Mr. Gar Knutson: Sure.

Ms. Karen Brown: It says:

The Minister must recommend that the order

—this is the order for the protection—

be made if the Minister is of the opinion that the laws of the province do not protect the species.

Mr. Gar Knutson: And so why is his subjective opinion a tight test?

Ms. Karen Brown: A “tight test”? I guess from the way I would read that, if the minister is of the opinion...then he can make that determination, as opposed to there being some set of five or six tests to pass.

Mr. Gar Knutson: It's not a transparent criteria; it's just in his or her head.

Ms. Karen Brown: The very first thing you look for is whether or not the provincial laws actually are in place. If they are not in place, then the federal minister would make recommendations to put in place that piece.

Mr. Gar Knutson: Only if he's of the opinion...and his opinion isn't subject to any sort of transparency. It's a completely subjective test.

Mr. Steve Curtis: Where he didn't come up with that opinion, for one reason or another, the fact of that would be immediately obvious. This is occurring in an open public policy environment. It will be clear that the minister hasn't put in place the appropriate prohibition when a province has not. This is not something secret and clandestine.

Mr. Gar Knutson: Yes, but his discretion is absolute. It wouldn't be challengeable in court.

Mr. Steve Curtis: Correct, but he'd be held accountable publicly for the results of this decision, of the action he didn't take, in this case.

Mr. Gar Knutson: Okay. So we're in agreement that he's not accountable in law, he's only accountable politically, and as such it's an absolute discretion.

Mr. Steve Curtis: Yes.

Mr. Gar Knutson: Let me take you to another issue: citizen suits. They were included in Bill C-65. You talked about the American experience earlier in response to one of the questions. When the Reagan administration came to power and stopped enforcing environmental legislation, the number of citizen suits launched went way up.

They provide a legitimate backdrop to the potential that government will become inactive. We included them in CEPA, but we haven't included them here. I just wondered if you could give me the reasoning for that.

Ms. Karen Brown: They were included in Bill C-65. They were based on CEPA and the CEPA model. It was publicly the single most contentious issue that we faced when Bill C-65 died on the order table. We had extraordinarily strongly held views, mostly from individual landowners and farmers who were very concerned that civil suits would give people the ability to sue farmers, individuals, every day of the week.

The huge difference between CEPA and the species at risk act is that in CEPA you're dealing with very large companies. In this case you would be dealing with potential lawsuits against individuals, largely small farms, small landowners. So the opposition was enormous, and it didn't, in our opinion, add very significantly to the protection of species where it counts on the ground. In fact, we felt it was going to encourage the “shoot, shovel, and shut up” syndrome.

Mr. Gar Knutson: I was on the committee that looked at Bill C-65. I remember I defended citizen suits. I remember pointing out to people who opposed it that they should read the act, that there was a test that had to be met on whether they could actually bring a citizen suit. There had to be an application to government to do an investigation. Government had to do an investigation and had to provide reasons. And it was only after that that the suit could be launched.

• 1655

I didn't see a whole lot of—

Ms. Karen Brown: Part of the challenge, I think, is that there was a huge amount of misunderstanding and myth out across this country on what those civil suits' provisions actually were. And you could explain this the way you've just described it a million times and still not reach people. They were very much hearing what they wanted to hear, and the civil suits to them were just a very bad example of Americanizing the Canadian process and it became very much a symbol.

Mr. Gar Knutson: I hope we're not in the business of amending legislation simply because there's a huge misunderstanding. That seems to be what you're suggesting.

Ms. Karen Brown: This is not amending legislation. This is a brand-new proposal, Bill C-33. Bill C-65 died on the Order Paper. The Government of Canada spent a year and a half or more revisiting many of the large policy issues that in fact were problematic in Bill C-65. There were a number of issues that were dealt with in very different ways through this new legislation.

Mr. Gar Knutson: Fair enough. And compensation was I think the single concern and you've dealt with that. I give you credit for that.

But I think there might have been a place for an alternative to citizen suits, whereby we could somehow find a way to make at least cooperative landowners a little more comfortable and still leave it in. It may well be that we'll get governments that don't do what they're supposed to do, federal or provincial.

I'll leave it at that.

The Acting Chair (Mr. David Pratt): Thank you, Mr. Knutson.

Are there any other questions from committee members?

With that, I will thank you, Ms. Brown, and I will thank your colleagues from the Canadian Wildlife Service as well for joining you here today. It's been very informative.

I adjourn the meeting.