ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 16, 2001

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[English]

The Chair (Hon. Charles Caccia (Davenport, Lib.)): Ladies and gentlemen, mesdames et messieurs, good afternoon.

[Translation]

Good afternoon. I believe we have the quorum we need to begin our work on Bill C-5.

[English]

I welcome the witnesses today. I would like to warn the witnesses about the fact that there is a danger of interruption because of unexpected votes. We hope it will not happen, but it could. Therefore, it's desirable that we make the best possible use of the time available and start without delay so that you have an opportunity to let us know your views.

We have Professor Wallace on the stand, and Mr. Bennett—a revised Mr. Bennett with a new beard. Then we have Mr. Chase.

So Mr. Bennett is the spokesman for the CLC, I suppose, as usual.

Mr. David Bennett (National Director, Department of Health, Safety and Environment, Canadian Labour Congress): Not quite. The spokesperson is the vice-president of the Canadian Labour Congress.

The Chair: All right, the vice-president of the Canadian Labour Congress, Mr. Yussuff, who is no newcomer. We know him already from past appearances.

Welcome to you, Mr. Yussuff, Mr. Bennett, Professor Wallace, and Mr. Chase. If you can compress your presentations, there will be more time for questions. Who would like to go first?

The Clerk of the Committee: Mr. Chase has a plane to catch.

The Chair: Mr. Chase would like to go first.

Please go ahead.

Mr. Stephen A. Chase (Vice President, Intergovernmental Affairs, Atlantic Salmon Federation): Thank you, Mr Chairman. I appreciate that. I really appreciate the opportunity to be before the committee today to present the views of the Atlantic Salmon Federation on Bill C-5.

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From the outset, I'd like to tell the committee that the Atlantic Salmon Federation is fundamentally supportive of Bill C-5, but we also intend to present some improvements that we think would make the resultant act more effective.

The wild Atlantic salmon, Salmo salar, has long been recognized as one of the most majestic of all fish. It's native to North America and Europe and has an historic range that extends as far south as Connecticut and Spain. Historically, the Atlantic salmon was prized as a commercial species along with its value for food, social, and ceremonial purposes by aboriginals, and its extensive recreational benefits.

In recent years, however, the decline of wild salmon populations has led to the closure of the North American and much of the European commercial fisheries, leaving the aboriginal food fishery and the recreational fishery as the primary fisheries for the species.

I'd like to tell you a little bit about the Atlantic Salmon Federation. We're an international non-profit organization that promotes the conservation and wise management of wild Atlantic salmon and its environment. ASF has a network of seven regional councils in New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland, Labrador, Quebec, Maine, and New England. We have a membership of over 150 local river associations and 40,000 volunteers. Our regional councils cover the entire freshwater range of the Atlantic salmon in North America.

In pursuit of our mission and goals, ASF will advocate to government, industry, and the public all necessary measures to achieve its conservation objectives for wild Atlantic salmon. That brings me to the purpose of our brief.

Our objective is to present to the standing committee our perspective on Bill C-5, the Species at Risk Act, and what ASF considers to be the issues and solutions we would propose with respect to Bill C-5 that would promote conservation and protection of wild Atlantic salmon in areas where the numbers are seriously threatened or they are in danger of extirpation.

North American populations of wild Atlantic salmon have been declining for over 20 years. Some of the causes of the decline are uncertain, but the likely contributors include dams, habitat destruction, predators, pollution, global warming, and other factors that we're not familiar with.

The Chair: Not overfishing? Did you mention overfishing?

Mr. Stephen Chase: Over-commercial fishing, but the commercial fishery is now closed. It has been closed for about 10 years.

The Chair: But did you mention overfishing?

Mr. Stephen Chase: Yes.

The Chair: You did?

Mr. Stephen Chase: Yes.

Closure of the Canadian commercial salmon fishery and closure and catch reductions in the recreational sector have so far failed to reverse the slide.

Today in Maine and the adjoining Bay of Fundy region of Canada, wild salmon populations are in imminent danger of biological extinction. In most rivers of the state of Maine and in the 33 rivers of the inner Bay of Fundy, native salmon populations have been listed as endangered. In Maine, the listing occurred under the United States Endangered Species Act in November 2000, and as a result, a major federally funded conservation and restoration plan is in development.

In the inner Bay of Fundy, COSEWIC announced an endangered listing of the inner Bay of Fundy salmon just two weeks ago. Native and wild salmon in some rivers of this area have already been extirpated. Time is an enemy, and there's precious little of it left to put these populations on the road to recovery.

So the Atlantic Salmon Federation is supportive of Canadian legislation that could enable more effective protection of endangered species and their habitat, and will enable the marshalling of resources and preparation of plans leading to a coordinated and concrete action to address the problem in the rivers and the marine environment.

We're of the view that there is a clear need for stronger endangered species and habitat protection in Canada. Prevention of the extinction of wild Atlantic salmon stocks in the majority of rivers leading into the Bay of Fundy is an absolute biological priority.

Unfortunately, not all the reasons for the decline in the Bay of Fundy are known, and for that reason, an immediate, properly funded, and coordinated action is urgently needed to protect and restore these remnant populations in that area.

Efforts to sustain wild salmon populations have been hampered, however, in the absence of federal legislation specifically intended to protect endangered species and critical habitat. ASF considers Bill C-5 to be a good beginning in addressing the need for endangered species legislation at the federal level. It's important to have a species at risk act enacted in this sitting of Parliament.

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The Fisheries Act establishes conservation as the paramount priority for the Minister of Fisheries and Oceans. Current provisions of the Fisheries Act do enable the Minister of Fisheries and Oceans to undertake management and protection measures to prevent further risk to the fish stock and fish habitat. It's regrettable, however, that only limited action has taken place so far through Fisheries and Oceans.

The Atlantic Salmon Federation believes that the adoption of endangered species and habitat productive legislation through this Species at Risk Act will augment and give new impetus to the minister by promoting the adoption of immediate planned and coordinated action to research the causes of the decline and facilitate development of a comprehensive recovery plan for the 33 rivers of the inner Bay of Fundy. It may in fact be wise for the new act to supersede the Fisheries Act in this regard.

There are some areas where we think the bill could require some improvement. The Species at Risk Act has potential to open new avenues of focused activity to address conservation management and protection issues in Bay of Fundy salmon and other endangered species. Canada needs credible and transparent procedures to evaluate the status of threatened or endangered species, provided the resolve and necessary funding to carry out these tasks is available. Ideally this legislation should also make it easier for stakeholders outside of government to also contribute to the process through the mustering of additional fiscal and physical resources to help in a recovery.

The Atlantic Salmon Federation has reviewed Bill C-5 and has identified certain aspects of the bill that could be improved and strengthened prior to adoption. These include adequate funding. To be truly effective in meeting its stated intentions, the Species at Risk Act must be accompanied by assured sources of funding to implement its provisions and to ensure that species protection and remedial action occurs. Bill C-5 provides no assurance of adequate funding, and in the absence of this, the act may prove to be unworkable, leading Canada to be forced into choosing priorities among species it could afford to protect. Inadequate funding will render the act ineffective except for select threatened and endangered species.

Where the need to protect a species is identified in accordance with the act, there's a concomitant need to ensure that funds are available to implement a recovery plan. Adequate sources of funding are also required to encourage communities, landowners, and land managers to contribute to the conservation plans affecting critical habitat on their lands or in watercourses adjacent to their lands.

This critical aspect of the act is closely related to developing the commitment to stewardship through creation of an adequately funded program that encourages individuals and corporations whose property interests may be affected by the act to conserve species and their habitat.

Conservation action that either limits the uses of land or adjacent watercourses or that requires control measures to prevent injury to habitat may be expensive to a landowner. Therefore we're calling for a provision in the bill to provide reasonable compensation to landowners undertaking protective or recovery action.

Fostering stewardship. One of the major objectives of the act must be to foster a sense of stewardship of natural resources among Canadians. This is particularly true in the case of threatened and endangered flora and fauna, but it should not be restricted to them. The public education aspect of the act and the benefits that flow from it must not be overlooked. The ASF therefore recommends that the act make provision for comprehensive public education to build a sense of shared stewardship within the public and between landowners and government for wildlife species and their habitat.

A science-based listing. The ASF supports listing of endangered species based on the best available science. The ASF is satisfied that COSEWIC as a competent scientific body will provide non-biased advice based on the best available science. Under Bill C-5, the decision to list or to delete a species from the endangered or threatened list is discretionary on the part of cabinet. Similarly, discretion is vested in cabinet to decide whether to prevent destruction of critical habitat on federal lands in the exclusive economic zone of Canada or on the continental shelf, or to actually provide this protection.

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So ASF is of the view that decisions to list species as threatened or endangered should be based on the best available scientific advice and that this advice should be paramount to any other factor that may be taken into account in a decision respecting the listing of a species. This means that in the absence of compelling reasons to the contrary, where there's a recommendation of COSEWIC to list, a listing should follow.

On recovery plans, Bill C-5 contains provisions for the development of comprehensive recovery plans for species approved for listing, but there's no timeframe specified in which the action plan must be implemented. The ASF is of the view that a timeframe should be identified by which a recovery plan should be prepared and implemented.

On COSEWIC's list, clause 130 specifies that COSEWIC must reassess the status of each of the 380—I think that's the last count—extinct, extirpated, endangered or threatened species. This means that COSEWIC will start with no list and the very large and time-consuming task of reassessing the 380 existing files. This will impede its ability to review and assess any new listing applications.

If the existing list of threatened or endangered species has merit, the government has the option of grandfathering the existing list into legal status. Otherwise, COSEWIC needs to be allocated sufficient resources to carry out its review of the existing list without impeding proper and expeditious consideration of new applications.

COSEWIC has in fact recommended that its existing list be given legal status in the act, as have most other witnesses, including the forestry and mining industries. In fact, the 1996 bill, C-65, gave immediate legal status to the COSEWIC list. Therefore the ASF believes that Bill C-5 should do the same.

On COSEWIC's composition, in order to assess and render decisions on the best available science, it's desirable that the membership of COSEWIC be independent, non-government experts who are capable of providing competent assessment of applications for listing. In addition, all appointees should be reviewed by expert scientific bodies to assess their competence for COSEWIC appointment.

The ASF also supports a broad-based and transparent scientific approach to listing species under the act. This would include a process through which recommendations are made to the ministers and the decision-making process employed by government in the council on listing. In addition, a process through which citizens could take action to affect a listing and ensure that the act is implemented would be desirable.

The United States Endangered Species Act provides for individuals to initiate legal action to compel or enjoin the federal government to carry out its responsibilities pursuant to the act. This is desirable in terms of promoting necessary action and accountability for the obligations established in the legislation. So the ASF believes that provision should be made in Bill C-5 to enable individuals to enjoin government to carry out its responsibilities under the act and ensure that the act is enforced. Wording similar to the provisions adopted by the U.S. government would accomplish that objective. I'd note that a similar provision to this effect was provided in Bill C-65, 1996. We would like to see that restored.

The critical habitat. The federal habitat protection does not include riparian or upland habitat for fish, except on federal land. The Fisheries Act does include all upland habitats. This omission should be corrected in Bill C-5. Habitat protection is the key to saving a species, particularly a species like the Atlantic salmon. The bill should make it mandatory, however, and instead Bill C-5 makes habitat protection discretionary, including in areas of federal jurisdiction. Most provincial endangered species acts, including New Brunswick's, make habitat protection mandatory. So mandatory protection of critical habitat, which was included in Bill C-65, should be reincorporated in Bill C-5.

The ASF believes it's important to adopt additional protection through Bill C-5 to ensure the protection and conservation of an anadromous fish species like the wild Atlantic salmon and its habitat. This would complement the provisions of the Fisheries Act.

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In the case of an anadromous species—and that's a species that lives in both the fresh water and marine environments, like the Atlantic salmon—protection of the species and habitat needs to be ensured and threats addressed in both the in-river and ocean environments. In both instances, the federal authority may need to develop action plans that involve provinces and foreign governments. In light of the primary federal responsibility with respect to this anadromous fish species, the possibility of infringement on provincial authority is considered remote. So we recommend that protection be provided in both the ocean and marine environments.

Finally, Mr. Chair, there are some definitions in Bill C-5 that ASF believes could be improved and strengthened. The definition of habitat should be amended, or clarified, to provide protection to aquatic habitat formerly occupied by endangered or threatened species. This is reasonable, where productive habitat exists, from which a species has been extirpated or artificially excluded, that provides potential for re-establishment of the species.

All habitats that are within a geographic area of a biologically or geographically distinct, threatened, or endangered aquatic species should be considered habitat within the definition of the act.

On the definition of wildlife species, various aquatic wildlife and other species are differentiated in behaviour and appearance by the geographic area of their residence. This may be due to specific environmental characteristics that induce differentiation, such as water quality, colour, chemistry, temperature, and migration patterns.

There are scientifically documented biological differences between the inner Bay of Fundy salmon and other wild salmon populations in North American rivers. There are also scientifically proven distinct differences between wild salmon in individual rivers within a geographic area, for example, in the inner Bay of Fundy.

ASF therefore proposes that the definition of wild species be amended to recognize geographically distinct populations, in addition to biologically distinct populations.

Our complete list of recommendations is provided in the brief we circulated earlier.

I would like to express my appreciation to the committee for providing me with the opportunity to meet with you today, and I will be pleased to respond to any questions you may have.

Thank you very much.

The Chair: Thank you, Mr. Chase.

Let me just make sure I understand you correctly. The omission, in your opening statement, of overfishing was inadvertent. Is that correct?

Mr. Stephen Chase: I don't understand, Mr. Chair.

The Chair: Your opening paragraph on the causes of the depletion of the resource quotes dam construction, pollution, predators, habitat destruction, but not overfishing. Is that an inadvertent omission on your part?

Mr. Stephen Chase: I'm looking at the causes we're focused on today. Overfishing was an issue, but by the early 1990s the federal government had purchased the commercial fisheries that were responsible for the overfishing in the North American context.

It is true that there is—

The Chair: Yes or no. Just tell me whether it was inadvertent or not. You gave me an answer earlier when I interrupted you, and I apologize for that, but it was not quite clear to me. Do you agree that overfishing is part of the problem, or not?

Mr. Stephen Chase: Overfishing was part of the problem, that's right.

The Chair: Okay. Fine. That's all. Thank you very much.

The next witness is Mr. Yussuff.

Mr. Hassan Yussuff (Executive Vice-President, Canadian Labour Congress): Thanks, Mr. Chair, for the opportunity to present.

I want to start off first by acknowledging that we hope this is the last time we will be presenting on this particular piece of legislation. We've been here too many times before this committee on the same piece of legislation, only to realize that the legislation didn't make it through the House and the Senate for adoption. So in this context, again, I hope the committee is cognizant of the fact that we've been debating this issue for quite some time.

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The Canadian Labour Congress, as you know, represents over two million members, in both the public and private sectors across the country. All the members have an interest, as citizens, in the protection of endangered and threatened species. Many workers come into contact with endangered or threatened species as park officials, game wardens, agriculture and forestry workers, government employees, and many others.

This point of contact, of workers with living species, forms the focus of this submission. In particular, many workers are likely to be strongly and directly affected by species recovery strategies and action plans.

The Canadian Labour Congress welcomes Bill C-5. The law will prohibit the killing of about 40% of Canada's endangered species—those on federal lands and waters, and migratory birds—and protect their nests or dens, but not their habitats. But this positive move is offset by many flaws, which we hope the committee will see fit to remedy.

The Canadian Labour Congress environment committee, on which all of the groups of workers listed above are represented, has worked in close association with the Endangered Species Campaign over the past five years. The CLC supports the concerns and aspirations of the campaign in regard to the future and improvement of Bill C-5.

The first concern is that habitat protection is merely discretionary, even on federal land and in areas of federal jurisdiction. The bill does not require the protection of endangered species' habitat; it merely says cabinet may protect it.

Second, the federal government is advocating major areas of its own jurisdiction. Under Bill C-5, the federal government is not responsible for protecting the habitat of fish and migratory birds outside federal lands and waters.

Third, Bill C-5 establishes the Committee on the Status of Endangered Wildlife in Canada, or COSEWIC, but cabinet, not COSEWIC, will decide which species to list as endangered or threatened. This approach, in five of the six provinces with endangered species acts, has resulted in only 30% of current COSEWIC listings being protected, and then only on paper.

The question of which species are endangered or threatened is scientific, not political. The bill does not even use the existing COSEWIC list as the starting list under the act, as was done under Bill C-65. Instead, it starts without any specific species listed. This is illogical and unacceptable.

Fourth is interim habitat protection. Bill C-5 fails to protect habitat between the time of listing and the completion of an action plan, which could be several years. There is no protection for cross-border species, unlike the previous Bill C-65.

Sixth is the safety net. Where a province or territory fails to protect endangered species, cabinet may extend the federal law to cover the species in question. This discretionary power is a big disappointment.

We would like to point out to the committee that the CLC, in its submission on Bill C-65, strongly recommended that the federal government use its constitutional power over endangered species in order to achieve a national standard of protection for species at risk, in line with the National Accord for the Protection of Species at Risk in Canada.

In addition to these issues, the CLC would like to raise two concerns about the interests of workers in communities, about which Bill C-5 is silent. The first concerns the situation of workers in communities, in regard to recovery strategies and action plans.

The bill requires the government to cooperate with any other person or organization that the competent minister considers appropriate. In our view, this should be changed so paragraph 39(1)(e) and paragraph 48(1)(e) read:

workers, communities and their relevant organizations, and any other person or organization that the competent minister considers appropriate.

Further, consultation with workers and communities should be required, so that subclauses 39(3) and 48(3) are modified to read:

...in consultation with workers, communities, landowners, and other persons whom the minister considers to be directly affected...

Further, where an ecosystem approach to species recovery is taken, the indirect effects on these parties must be taken into account by the addition of subclauses 39(4) and 48(4):

(4) Where an ecosystem approach to species recovery is taken, the recovery strategy/action plan must be prepared in consultation with any workers, communities, landowners and other persons who are indirectly affected by the strategy, including the government of any other country in which the species is found.

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In order to ensure that these rights and responsibilities are respected, it is essential that an independent review body be set up under Bill C-5 to address the rights of affected parties to appeal, if these rules and responsibilities and the recovery strategy action plans are not respected. This too was in the previous Bill C-65, and it is a central recommendation of the Endangered Species Campaign—among many other bodies.

The CLC's second and final recommendation concerns the funding of the associated stewardship program. The campaign has pointed out that the level of funding is far too low, in that only a maximum of $50 million per year is devoted to recovery activities. Support for affected communities has been mentioned, in addition to support for landowners, but it is by no means clear that workers in communities are eligible for funding. The only answer is to give such funding a statutory basis in Bill C-33.

We therefore propose that a new clause be inserted before the end of the bill, which is clause 142:

Where funding is available to support recovery activities, such funding shall be shared equitably among workers, communities and landowners, to the extent that they are affected directly or indirectly by recovery activities.

Support for workers and communities should fall under the CLC policy on just transition for workers during environmental change—a copy of which is attached. We would particularly like to draw the committee's attention to chapter 5, on sustainable communities. This chapter relates ecological protection to human settlements and their place in the natural world.

All this is respectfully submitted on behalf of the Canadian Labour Congress. We thank the committee again for its work in regard to this bill, and we hope this effort will lead to a complete piece of legislation being enacted by the House of Commons.

The Chair: Thank you, Mr. Yussuff, for your nicely summarized submission, which is very helpful, and also for the humanistic touch.

The next witness is Professor Wallace. Thank you for your comprehensive analysis of the bill, which is also extremely helpful—particularly the chart on page 4, and the case studies. For us on the committee, these are a novel feature in a submission, and therefore extremely helpful.

Professor Scott Wallace (Boston University School for Field Studies): Thank you, Mr. Chair and members of the standing committee, for providing me with this opportunity. I will go ahead, and I also have a slide presentation.

My presentation is about Bill C-5's potential to address marine concerns. It consists of the highlights of a brief prepared by me and David Boyd, senior associate with the Eco-Research Chair in Environmental Law and Policy, Faculty of Law, University of Victoria.

My own research focus is on the impact of fisheries on marine ecosystems. I'm a researcher at the School for Field Studies in Banfield, B.C. Usually I'm found wearing rubber boots, but today I'm wearing a tie.

I've worked with many species, including the harbour porpoise, North Atlantic bottle-nose whale, North Atlantic right whale, sea otter, and northern abalone. These species are all listed by COSEWIC.

Canada's vast marine-terrestrial areas cover a total of 15.3 million square kilometres. The federal government has exclusive jurisdiction over marine areas, but only over 4% of the terrestrial area—the remaining 96% is under the jurisdiction of provincial and territorial governments. In other words, the largest area governed by the proposed Species at Risk Act is marine, not terrestrial. In fact, the federal marine areas are 13 times the size of the federal terrestrial area.

We are presenting 18 recommendations, which can be found in section I of the brief. Some address general concerns and others are more specific. In our presentation this afternoon, I'll address most of these concerns, using examples where appropriate. If I could have the slides....

How many people like seafood here? A couple. First of all, these are some uni, which are sea urchins. This is urchin harvesting. Most seafood comes from wild sources, or quasi-managed ecosystems; so the animal matter on a plate is a direct product of functioning marine biodiversity. Anything we can do in stewardship of our marine resources ultimately protects the marine industries, and the well-being of all Canadians.

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Although the preamble to the species at risk bill states that Canada is committed to conserving biological diversity, the bill ignores the other fundamental levels of biodiversity: genetic, species, and ecosystem diversity.

We recommend that the act be cited as the Biodiversity at Risk Act, to reflect contemporary scientific and political understanding of biodiversity. Following from this is our concern regarding the terminology of biologically distinct populations and the definition of “wildlife species” in clause 2.

Using a biological abstract database from the year 2000, I conducted a search for the key phrases “genetically distinct populations”, “geographically distinct populations”, and “biologically distinct populations”. I found 40 matches for the first term, 32 matches for the second, but no matches for “biologically distinct populations”. So because it's unclear what this means, in law or in science, we recommend either that the term be further clarified, or else that the term “genetically or geographically distinct population” be used instead.

There is no definition of an ecosystem in the bill, and yet an ecosystem approach is recommended. We recommend using the same definition found in the Canadian Environmental Protection Act. And we would like to require competent ministers to make decisions under Bill C-5 and to use an ecosystem approach whenever possible.

The next slide: the otter. My next concern pertains to how species become listed. I'm going to read a quote from the MP in my riding—though I won't name any names:

Science, not politics, must be the basis of the legal list of endangered species. The legal list must not be left to the discretion of cabinet.

I agree with this completely. If the endangered species is an otter, it may have some sort of political clout.

The next slide is a geoduck. It's the longest-living species found on the west coast, living up to 167 years. I don't think any politician would list this. So we should amend clause 27 to be at the recommendation of COSEWIC, not at the recommendation of cabinet.

We are concerned that once a species is listed, there is no timeline for undertaking an action plan. This may just have been a drafting oversight, because there do seem to be timelines for both recovery strategies and management plans.

There's a pervasive lack of knowledge about marine environments—even about species that are directly utilized by humans, let alone the thousands for which there's no information.

This next slide is a yellow eye rockfish. It has been recorded to live to 127 years old, and it was heavily exploited for much of the 20th century.

The next slide has a caption: “450 pounds of cod, two rods, two hours”. These 120-year-old animals were taken from the Strait of Georgia in the 1950s. Due to such overexploitation, the yellow eye rockfish has been extirpated from much of its range. But there's little information to demonstrate this, because of the pervasive lack of knowledge about marine ecosystems. Therefore we recommend that all decisions made pursuant to the legislation be based on the precautionary principle, in the same manner as the Canadian Environmental Protection Act.

This is a picture of a rare animal that most people will not have a chance to see: a North Atlantic bottle-nose whale. It's listed as a special concern under COSEWIC. Using the precautionary principle, we believe that species listed as “special concern”—and not only extirpated, endangered, or threatened species—should also be protected under the act, if your goal is to prevent animals from becoming listed in those categories.

The next slide is of a killed humpback whale. There was a resident population of humpback whales in the Strait of Georgia in the early 1900s, but they were extirpated by overharvesting. In the terrestrial definition of habitat, the former range of an extirpated species is included, whereas the aquatic definition of habitat does not include a species former habitat. We recommend that the definition be consistent between these two habitat types.

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The next concern pertains to the use of the word “residence” in the bill. First of all, this term ignores the main issue, which is critical habitat. But secondly, the term is nonsense from the point of view of most marine species. The little gunnel shown in this slide can perhaps be said to have a residence in a sponge, during the brief time it guards its eggs there. But this is definitely the exception in marine environments.

We recommend that all references to “residence” in Bill C-5 should be replaced with “critical habitat”. This will also provide some much-needed simplification in later sections, which create a complex process that may or may not result in protection of critical habitat.

Even if the committee decides not to replace the word “residence”, there's another weakness we noticed in the bill. Clause 33 states that “No person shall damage or destroy the residence”. But subclause 58(1) says: “No person shall destroy any part of the critical habitat”. Presumably this means you're allowed to damage critical habitat but not to destroy it. We think this needs to be addressed.

This picture isn't very good, but it's of a salmon aquaculture lease. Our next recommendation pertains to the acquisition of lands. We felt it was unclear whether or not land interests, such as crown leases for uses such as aquaculture or forest lands, were included. This should be made explicit in clause 62.

In our brief, we actually did an entire case study on orcas, but for now I'll just say that orcas, along with many marine mammals listed on the COSEWIC list, are threatened by toxic build-ups and pollutants. This is the most direct form of harm to marine species that's currently listed.

As the bill stands now, little can be done to help species suffering from high levels of pollution. We believe the wording of subclause 32(1) should be changed to read: “No person shall kill, harm, harass, capture or poison”. We think the definition of “poison” from the Oxford dictionary would be appropriate to include in this section.

The orca is also a good species to demonstrate the concern regarding international agreements for protection. The southern resident population in British Columbia is often found in Puget Sound, Washington State, which has considerably different regulations for activities such as whale-watching.

Of course, many other marine species are highly mobile and cross international borders. We recommend that clause 11 allow the government to enter into agreements with any other national government.

This is a picture of a northern abalone, listed by COSEWIC as a threatened species. It suffers from a high level of poaching. For the bill to be effective, we recommend that there be adequate funds to allow for full implementation and enforcement.

There should also be a mechanism to give concerned citizens standing to enforce this law in situations where the government fails to enforce it. This is also a recommendation of the United Nations' global biodiversity assessment.

This slide is of the extinct Steller's sea cow, which used to exist on the west coast of North America. It is our reminder that we need to protect marine biodiversity. This bill requires some substantial changes if it is to be effective in protecting marine biodiversity.

However, there are some excellent provisions that should be recognized. For example, we feel the threat of overfishing of a marine species is well addressed. Unfortunately, I do not have time to talk about all the recommendations we made in our brief, but I do encourage the committee to look at the brief and to consider our recommendations on strengthening Bill C-5.

In conclusion, this final slide is of Canadian stamps with marine species on them.

On behalf of all Canadians who really do enjoy marine biodiversity, thank you very much for listening to this presentation.

The Chair: Thank you, Professor Wallace.

Do you realize that if this committee were to act on your suggestion of replacing “residence” with “habitat”, it would cause major apoplectic attacks in the Departments of Industry and Natural Resources, and maybe even bring down the government?

Prof. Scott Wallace: Do you want me to respond to that?

Some hon. members: Oh, oh!

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Prof. Scott Wallace: Well, to respond from an ecological perspective, without that it's going to bring down all the different biogeoclimatic ecosystems in Canada the same way. If you do not protect the critical habitat, then you're not protecting the species.

The Chair: I was just saying it tongue-in-cheek.

[Translation]

You have five minutes, Mr. Roy.

Mr. Jean-Yves Roy (Matapédia—Matane, BQ): Thank you, Mr. Chairman.

I want to thank the witnesses for their presentations.

I'm a member of the Fisheries and Oceans Committee and among other things, I heard Mr. Chase say that this bill should take precedence over the Fisheries Act.

My question concerns aquaculture in particular. It is common knowledge that we are currently having some major problems with aquaculture and specifically, with sea farming. Perhaps I'll come back to that topic later.

I listened to Dr. Wallace's presentation and heard that he hailed from Victoria, British Columbia. Currently, some of the problems that British Columbia is experiencing with the red salmon in the Thompson and Fraser rivers and their tributaries are similar to our own problems.

We did put a question to a scientist from Fisheries and Oceans and unfortunately, he was unable to provide us with an answer. So, I'll put the question to you.

In some cases, the ban on fishing can lead to overpopulation of spawning grounds and to a high mortality rate. In your opinion, could salmon overpopulation in the Fraser and Thompson rivers lead to overpopulation in spawning grounds and to a high mortality rate? This would represent a loss to this region's economy. If these salmon had been fished, obviously, the problem would not have been so great for the spawning grounds. Can you provide an answer to that question?

That's my first question, Mr. Chairman.

[English]

The Chair: Professor Wallace, in your reply, could you perhaps try to stay within the context of the bill before us?

Prof. Scott Wallace: Okay. The question is whether or not the over-escapement of salmon leads to a crash of the population, which then will hurt the economy. That's what I got from that.

First, I disagree. In B.C. you're actually supplying nutrients to a lot of streams, because those salmon just don't die, they provide nutrients all the way down the entire river watershed. As a result, for all the species in that ecosystem that benefit from escapement of salmon, you're correct in that, for that one run, it could have a minor impact on the population. But it's such a complex life cycle that I don't think scientists know enough to say whether or not over-escapement results in death of the entire run. As a matter of fact, it seems to be that since they are fertilizing rivers, they try to bring back streams, that this extra input of nutrients is actually beneficial to streams.

I'm not sure exactly how that fits into the bill. I'd need a more precise question to answer that.

• 1620

[Translation]

Mr. Jean-Yves Roy: I'll tell you what the link is with the bill. Mr. Chase among others stated that overfishing was one of the reasons for the disappearance of Atlantic salmon in the Bay of Fundy. You made a similar statement. You also said that it was not up to the politicians to decide which species should be registered. However, since you're here, I've heard it stated three times, by you yourself as well as by the other witnesses, that we do not have enough scientific knowledge to make this kind of assessment. That statement is correct. I put the same question to the Fisheries and Oceans Committee and I have to say that since 1995, scientists have been studying the problem. Six years later, they still can't answer our question. What's the real problem? They are considering 23 or 24 different hypotheses and they can't give us an answer. The situation could become very dramatic and tragic before we get our answers from the scientific community.

At some point, we need to take action. That's what I'm getting at with my question. You claim that scientists should be entrusted with the responsibility of identifying endangered species. I disagree with you on that point. Let me take this one step further and say that this shouldn't be the sole responsibility of the scientific community, because if we relied solely on these individuals, the fishery would be serious trouble. That's the point I wanted to make.

[English]

Prof. Scott Wallace: The species you've chosen, the salmon, reflects one of the most complicated life histories of any species that we currently manage and study well enough. There are numerous other species that do not have such complexities, and their populations are known and there are fewer uncertainties, from a scientific perspective, in coming up with strong recommendations.

But I would have to agree with you that for some species where there is this pervasive lack of definitive knowledge, the scientists may not have the perfect answer. That is why superseding this whole bill should be a precautionary principle that somehow is reflected in the act, and that would be implemented species by species, run by run.

The Chair: Mr. Chase, would you like to give a brief reply?

Mr. Stephen Chase: Thank you, Mr. Chair.

I was just going to add, with respect to the precautionary principle, that Canada is a signatory to a number of treaties, including the North Atlantic Salmon Conservation Organization—otherwise known as NASCO—Treaty, which has identified the precautionary approach, that in the absence of adequate science, we should exercise caution in favour of conservation.

I'm coming back to the question that was posed on the overfishing issue. It is true that quite a few years ago overfishing was a problem for the Atlantic salmon. The fishery ended, as I noted before. But throughout the piece we've relied on sciences to provide advice that would guide management action, and the application of the precautionary approach has been an important part of that. So coming back to the context of this act, we think the scientific advice is of paramount importance in guiding the management of the fishery, and therefore should be an integral and prominent feature in the new act.

The Chair: Merci, Monsieur Roy.

Madame Kraft Sloan, followed by Madame Scherrer.

Mrs. Karen Kraft Sloan (York North, Lib.): Thank you very much, Mr. Chair.

On page 9 of your brief, Dr. Wallace, you have a paragraph near the bottom that says:

It would be ironic if the law intended to protect biodiversity at risk provided less protection to the habitat of endangered aquatic species than the Fisheries Act provides for aquatic species that are not at risk.

I've heard this from other scientists as well, and I'm just wondering if you could expand on that a little bit for the record.

Prof. Scott Wallace: The Fisheries Act, in subsection 35(1) is very explicit:

35.(1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

It's non-discretionary, and that's really the key. It's one of the most powerful wordings of environment legislation in Canada, that one line.

• 1625

Mrs. Karen Kraft Sloan: So you are telling the committee that there are aquatic species not at risk that will have greater protection than species that are at risk, which is really a sad state of affairs.

Prof. Scott Wallace: That's correct.

Mrs. Karen Kraft Sloan: The other thing I was quite interested in, in your brief, was this whole idea of ecosystem diversity. Certainly I've heard, not firsthand, but secondhand, from another scientist, that perhaps the name of the legislation should not be species at risk but habitat at risk, because it's been made very clear to us that you cannot protect species without protecting their habitat. It does not make biological sense.

I'm just wondering again, for the record, if you could expand on what you said about ecosystem diversity. The provision in CEPA—and I remember the amendment process for this, and we were quite pleased to get this through. It was important to have an understanding of an ecosystem approach. So it's not only the elements, but how they relate to each other as well.

So if you or any of the other witnesses would like to add some comments on how important it is not only to protect habitat but also an ecosystem approach....

Prof. Scott Wallace: There is a precedent for this from other jurisdictions. Both the United States and the Australian endangered species or similar legislation does allow for the protection of ecosystems as being endangered, especially because these people have recognized the contemporary science and tried to reflect that in their legislation, realizing that no species interact on their own. The only way you can actually protect the species is by protecting their habitat. Habitat or the word “ecosystem” shouldn't be used interchangeably, but the ecosystem is the area the habitat is within. You can't protect one without the other.

There's some legislation, such as the Forest Practices Code in B.C., which shows that you can protect, say, a residence, which would be a single tree in a clearcut because it has a bird's nest in it, but obviously that's not the habitat required for the carrying on of the species.

Would anybody else like to comment on it?

Mr. David Bennett: I'd just like to make two observations. We think, along with most other parties, that habitat is crucial; it is critical. But there are also other sources of threats to living species, and pollution is one of them. Unless that's addressed as well as habitat, you're going to get an incomplete bill. For example, the effects of pesticides on individual species such as the burrowing owl is a case in point.

The other aspect, I think, is this. You can say, quite rightly, that if you're going to protect species, you have to protect ecosystems. But one of the complaints about endangered species legislation is that legislation is used as a cover for protecting ecosystems using individual species as markers. In our view, that's not a complaint at all. That's a thoroughly legitimate part of the equation. What we're saying is that in protecting species, you're also protecting ecosystem; protect ecosystems and you will also protect species at risk.

Mrs. Karen Kraft Sloan: Mr. Chase, did you have any comment?

Mr. Stephen Case: Only that in protecting habitat vis-à-vis a marine or an anadromous species, like a salmon—and Dr. Wallace made this point as well—it's an extraordinarily difficult task. Fish that migrate from the ocean into rivers...the habitat is comprehensive. It's really quite difficult to define residence for certain species.

That's all I would add to that. It needs to be a comprehensive ecosystem approach, which I think the other speakers have addressed.

Mrs. Karen Kraft Sloan: I think this is a really important perspective to add to our deliberations on the legislation. Thank you.

The Chair: A second round perhaps.

Madam Scherrer, followed by Madam Redman and by the chair, and then we'll have a second round.

• 1630

[Translation]

Ms. Hélène Scherrer (Louis-Hébert, Lib.): Thank you, Mr. Chairman.

If I understood you correctly, Dr. Wallace, you would like to see the list in question to be strictly a scientific list and not take into account political considerations.

I'm looking at some of the species listed, such as beluga whales. We received several representations from First Nations who argued that we needed to consider traditional methods before placing a species, the beluga whale included, on the endangered list. How do you react when First Nations argue that in their opinion, the beluga whale is not an endangered species and that we must take into account socioeconomic factors, given that placing the beluga whale and other species on this list would likely constitute a tragedy for the residents of the Ungava Bay region? How do you respond to that?

[English]

Prof. Scott Wallace: You still have to fall back on what the scientific data suggests. In any kind of group, you're going to have people who, to support what they want out of it, will say they're not at risk; for example, with the beluga whale.

However, there still has to be some sort of a final authority. I believe the authority should still be based in science. It's not going to be an exclusively scientific decision. Socioeconomic factors will definitely come into the decision-making. However, the final authority should be a scientific body made up of multiple members and not simply political.

[Translation]

Ms. Hélène Scherrer: Do you recognize the traditional methods used by First Nations as scientific components?

[English]

Prof. Scott Wallace: I certainly do.

Ms. Hélène Scherrer: You disagree on the beluga whale then.

Prof. Scott Wallace: I'd have to see the best available information to make the decision. I'm certainly in favour of traditional knowledge, whether it's from first nations or not.

Ms. Hélène Scherrer: Their traditional knowledge says the beluga whale is not a species at risk. It's listed.

The Chair: It is in certain regions.

[Translation]

Ms. Hélène Scherrer: According to this list, this species is present in the St. Lawrence as well as Ungava Bay.

I don't want to focus on this one species in particular, but rather on the fact that if we decided to draw up a list solely on the basis of scientific criteria, it would be a little strange to draw comparisons which could result in a small cute bug being placed on the list, while another less inviting one would not be protected. I don't think factors of this nature should influence policy in any way. We have the example of one species, the beluga whale. According to scientific data, this species is at risk, where First Nations have argued before the committee that this is not the case, because more than just scientific components must be taken into account.

[English]

Prof. Scott Wallace: It's a very good question. Once again, I go back to saying there has to be some sort of authoritative body that makes the final decision based on the best available information.

Mr. David Bennett: Isn't it the truth that aboriginal knowledge is itself a form of scientific knowledge? If there's disagreement about whether the species is endangered, it is a legitimate disagreement among scientists. It's resolved by normal scientific methods, which is by argument dispute and coming to a conclusion.

Our view is decisions as to what is endangered should not be decided by economic interests, including the economic interests of workers and communities. However, we insist, and we pointed this out in our brief, there are ways of involving workers and communities in decision-making, for example, on recovery plans, and there's also some form of remedy if this participation of workers and communities is not in fact carried out. There should be a remedy, an appeal system. Furthermore, funding should be available to both workers and communities if they are in fact affected directly or indirectly by decisions on endangered species, and particularly decisions on recovery plans.

• 1635

I think your question is a good one, but I also think there are good answers to it.

The Chair: In fairness to the Inuit people, you may recall they urged that a new census be taken because the existing count went back to 1993. You remember that occasion? They were, themselves, seeking for more updated knowledge on the particular species.

Madam Redman, please.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chair.

I noticed Mr. Yussuff wanted to respond.

The Chair: Sorry, Mr. Yussuff.

Mr. Hassan Yussuff: I think the question from Hélène was an appropriate question, in the context of the struggle we're going through in our country to come to terms with our relationship with aboriginal people. I don't think it should be discounted. It's a really important issue.

In the context of how the bill talks about scientists providing answers to look at species coming onto the list, it is critical that we add aboriginal peoples' historical knowledge of this land as a really good reference point.

Without making that acknowledgement, we continue to replicate the systemic challenges our society has not been able to deal with. I think it should be referenced as a way to deal with these two different realities, recognizing their interests and our interests are the same. There needs to be a recognition in the context of trying to decide what is appropriate for our society. They have just as much right to make an argument based on their traditional knowledge.

The Chair: Thank you.

Mr. Chase, briefly.

Mr. Stephen Chase: Very briefly, our organization is calling for scientific information to be paramount in deciding the species at risk. It doesn't preclude other forms of knowledge or information being brought to the decision, but scientific expertise, quantification of problems, and so on, are paramount.

Thank you.

The Chair: Thank you.

Madam Redman, please.

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

I'd like to put my first question to Mr. Bennett.

Your organization has proposed that there be interim measures to protect species between the time of listing and the implementation of the recovery plan. I would argue, in my view, Bill C-5 actually has these in place in the form of stewardship and incentives, prohibitions to protect a species in its residence, plus the use of emergency measures, if needed.

Wouldn't you agree we could open ourselves to criticism with a bypass of the normal recovery planning process? It involves stakeholder participation, and actually ensures it, if we went to an interim method that didn't guarantee this.

Mr. David Bennett: From your description, it seems if there are interim measures already within the bill, as you described, then those measures should also involve the participation of workers and communities.

Our complaint about the bill is that the role of workers and communities is not explicit enough; either it's not there or it's not explicit. If it were there, it would meet the criticism you've mentioned. Offhand, I'm not really convinced those interim measures are there, as you say. If they are, then surely the answer is to make explicit the participation of workers and communities as affected parties, to give them the full participation they deserve, and the remedial actions if their concerns are not met in the ways laid down by the bill.

Mrs. Karen Redman: Can you elaborate on remedial action? What do you mean by that?

Mr. David Bennett: The idea of the bill is that for every problem there should be a recovery plan and a recovery strategy. We think that's entirely right. However, we're saying the bill doesn't make explicit that the affected parties are workers and communities. All we have so far is a possible decision by the minister to involve those parties that he or she considers appropriate. And that's not explicit enough.

• 1640

I'd like to point out that when the discussions went on between the environmental movement and business over this bill, communities were specifically referred to along with land owners as affected parties, parties that should participate, and parties to which remedial action...in the sense of if something goes wrong, these parties should have access to an appeal process. They should also be included in those parties that have access to funding in connection with recovery plans.

However, the notion of community participation is absent from the bill. And the question of affected workers—and there are potentially a lot of workers affected—was left out of the bill entirely. That's why we're saying that workers and communities should be inserted into the bill at all appropriate places.

Mrs. Karen Redman: Can I ask for clarification? When you refer to funding, are you talking about the kind of funding that goes into stewardship programs, or are you looking at the compensation piece of it?

Mr. David Bennett: The word “compensation” and the concept of compensation plays no part in the bill as we understand it. It was part of the debate that took place, and in our view they were not fruitful debates. But, yes, support for stewardship programs—which should include the activities resulting from recovery plans.

The question of funding isn't in the bill at all. That's left as an administrative matter. We understand there was a specific sum proposed for the old Bill C-35, and the figures we're using in our submission reflect that. But of course, that may change for better or for worse.

What we are asking the committee to do is to have an explicit reference to funding in the bill. It's not making a demand on any level of funding, but it is saying that where funding for stewardship programs does appear, then workers and communities should have an equitable interest in it, according to the degree to which they are affected by recovery plans and the degree to which they take part in stewardship programs.

Mrs. Karen Redman: Again, this is strictly as part of stewardship, right?

Mr. David Bennett: If stewardship includes recovery plans, then yes.

Mrs. Karen Redman: Okay.

if I still have time, I'd like to ask a question of Mr. Chase.

I understand that when your organization made a submission on Bill C-33, you maintained that in the legislation the listing process would make it easier for stakeholders who were outside of government to muster additional resources that could help in the recovery. Could you just elaborate on how you see species at risk legislation being of benefit in this way?

Mr. Stephen Chase: We think it's important for government to provide leadership in certain areas.

As I say, fortunately or unfortunately, we've become accustomed in recent years to government not having sufficient resources to do all the things that need to be done. But our organization has become accustomed in recent years to contributing sums of money to the Department of Fisheries and Oceans in order to help them do the kind of work that should otherwise be provided by government.

I think we have contributed—and this is all entirely volunteer-raised money—somewhere in the order of $1 million to joint projects with DFO in the Bay of Fundy; and somewhere in the order of $30,000 a year to some projects in Newfoundland. I just say that to illustrate that we don't see that as necessarily a bad thing—backfilling the government—but sometimes it may be desirable for other parties to be able to join into an action plan to bring a remedy to a problem. I don't have a problem with that.

• 1645

So I say fortunately or unfortunately, it's the circumstance we find ourselves in, and the government should be at least open to partnership with interested individuals and corporations.

The Chair: Thank you, Madam Redmond.

Dr. Wallace, your statement on page 23 on your comprehensive report is a bit disturbing because you conclude in summary that the act will not fulfil its purpose of protecting marine biodiversity in Canada, and you give eight specific reasons. Would you like to elaborate on those reasons, or at least a few of them?

Prof. Scott Wallace: A lot of them have already been talked about, not only by me, but actually all the witnesses today.

The Chair: In the absence of the precautionary principle, would you consider that an important item?

Prof. Scott Wallace: To include the precautionary principle?

The Chair: Yes.

Prof. Scott Wallace: Definitely, because of all the knowledge gaps, particularly in the marine ecosystems, there needs to be something that governs the bill in the lack of full certainty.

The Chair: In terms of flaws in the listing process, can you expand on that?

Prof. Scott Wallace: Could you repeat that?

The Chair: The second item, flaws in the listing process, what do you mean by that?

Prof. Scott Wallace: That's in how the COSEWIC list gets put into law.

The Chair: So what happens? What is the flaw?

Prof. Scott Wallace: Well, the flaw is it's at the discretion of politics, not science.

The Chair: Oh, the political discretion.

Prof. Scott Wallace: Yes.

The Chair: All right, we heard that.

Substandard protection for species of special concern—what does that mean?

Prof. Scott Wallace: Essentially, species of special concern, as the bill now stands, are not given any legal protection. Although a management plan is permitted to be drafted, the main sections of the bill that protect the habitat or the residences do not include species of special concern.

Using the precautionary principle, I would say the reason a species is listed as a special concern is to prevent it from becoming listed as threatened or endangered. That's how it's described in the definition section. So it seemed to me for the precautionary principle, if a species is somehow understood as being a special concern, why should harm be allowed to be given to these species?

The Chair: So would you say the inclusion of the precautionary principle would remove some other concerns that you have in connection with the protection of marine biodiversity?

Prof. Scott Wallace: The two main ones are the special concern and the lack of knowledge.

The Chair: Lack of knowledge.

Going back to your earlier point that residence should be replaced by habitat, which is a very appealing suggestion, I'm sure, the first reaction is perhaps that it will bring down the house in relation to cattlemen and farmers. They will just have a fit at that thought.

There could be in the legislation a reference to have marine habitat referred to in place of residence. But then I heard Mr. Chase a few minutes ago saying that habitat can be so vast, so immense, it could cause some difficulties. So how would you resolve this issue of marine habitat as an alternative to residence, in spite of the fact that it would cause the suspension of human activities in very large marine areas?

• 1650

Prof. Scott Wallace: At this point I don't think think there should be a distinction between terrestrial and marine when it comes to this idea of residence, because I've read some of the terrestrial testimonies as well, and those people, the terrestrial biologists, also agree that it doesn't work.

If critical habitat is the guiding force, that would be sufficient for the marine species, so there is that provision under critical habitat, but residence simply does not exist. I'm not sure actually how to get around this so that it does not put people out. Ultimately a law like this is trying to limit threats. Threats are human caused, so decreasing the cause of these threats is going to cause a change in either land practices or the way we interact with the environment. I don't see a way of having everything. At the same time, that's when it gets into compensation. Something is going to have to change.

The Chair: Thank you.

Mr. Chase, you want to comment on this, but you may want to include in your comment also an answer to the following question.

In the COSEWIC list of May 2001, the inner Bay of Fundy Atlantic salmon is listed. Could you elaborate for us as to the reasons why, and what is going on at the present time to take any remedial action in the absence of specific legislation?

Mr. Stephen Chase: I'll do my best, Mr. Chair.

With respect to the earlier question, habitat or residence is extremely difficult to define for marine species. However, I don't think it necessarily needs to lead to the suspension of all human activity. Rather, I think if the human activities that are carried out in some of the marine and in-river environments are done in an environmentally sustainable manner, they can co-exist.

I think this is the key we've brought to trying to develop a working relationship with the aquaculture industry on our part. We would like to see those operations carried out in an environmentally sustainable way. There are some limits to the technology, but there is work being done to address those things.

So I don't necessarily think it might lead to the suspension of all activity in large areas of the marine environment, as you said.

On the matter of the recent listing by COSEWIC of the Atlantic salmon in the 33 rivers of the inner Bay of Fundy, the causes of that are numerous. They've been everything from pollution to dams and other impoundments, to overfishing years ago that reduced the populations, loss of habitat in-river, and other factors such as predation in the marine environment from seals, cormorants, mergansers, and so on. That listing should be very useful to helping restore those populations.

There is in fact, and has been for the last two or three years, an initiative between the Atlantic Salmon Federation, the Department of Fisheries and Oceans, and other interested parties, such as universities, first nations, and provincial governments in Nova Scotia and New Brunswick, to develop an action plan. We couldn't wait for a species at risk act to come down. It was recognized that an action plan had to be developed, and in fact a very well-developed process is in place that would be enhanced remarkably by a funding and action plan that would be required in a species at risk act.

But we're ready to hit the ground running, and in fact we've hit the ground running before in anticipation of the act. I hope that answers your question.

• 1655

The Chair: Thank you, Mr. Chase.

We will now go for a second round.

Mr. Roy, Madam Kraft Sloan.

Mr. Stephen Chase: I have to leave now.

The Chair: You have to leave for the airport. Thank you for your appearance and your presentation.

Mr. Roy.

[Translation]

Mr. Jean-Yves Roy: Thank you, Mr. Chairman.

My question ties in with your query concerning habitat size and also with the comments made by Canadian Labour Congress representatives. The bill does not appear to contain provisions that truly protect local communities and those workers who could be affected.

The definition of habitat is extremely important in that when you talk about the marine environment, you're talking about very large areas. The example that comes to mind most often is Fisheries and Oceans. Whenever mention is made of slapping a moratorium on the fishing of certain species, serious problems arise. Whenever a moratorium is imposed, for example, on cod fishing, or whenever licences are issued only to crab or shrimp fishers, shrimp fishers end up having to dump tons of crab back into the ocean, or vice versa.

How can you define a habitat with a view to protecting a species without restricting human activity? The two go hand in hand. How can you possibly define a habitat within such an immense area, because fish migrate constantly, and how can you do this without jeopardizing in the process the livelihood of people in coastal communities?

[English]

The Chair: Mr. Yussuff, please.

Mr. Hassan Yussuff: It may be that in the context of protecting the habitat you do have to restrict the human population regarding that specific geographic area, as required if we're sincere about protecting it. It has consequences if people interact in the environment; if there is work going on it's going to be impacted. I think in the context of doing that there needs to be a recognition that workers who are required to deal with those consequences because of environmental change need to be dealt with in that context in the community as such. We recognized this a long time ago as a movement and provided a document to say that through environmental change you can't simply ignore this fact.

Why would citizens and communities buy into this argument from politicians or anybody else if they're not going to be taken into this context? I think in this context there needs to be a recognition that it's something we have to deal with. The stewardship fund speaks of this, but it's not clear whether it will be dealt with. I think there needs to be a rethinking in regard to this area about its importance, because we want citizens to embrace the act and recognize that there are consequences. And when the consequences do arise, government should work with the communities, workers, and organizations to ensure that this consequence is minimized, recognizing that there will be a dislocation of people in the context of dealing with it.

The Chair: Would that include the International Woodworkers of America union?

Mr. Hassan Yussuff: It would include all workers, including the International Woodworkers of America.

The Chair: Do you have a copy of their brief?

Mr. Hassan Yussuff: I haven't seen their brief. I'm sure it may be somewhat contradictory to our brief, but it represents I think the position we have adopted in the CLC. Doing nothing is not an answer.

The Chair: Mr. Roy.

[Translation]

Mr. Jean-Yves Roy: I'd like to get back to this subject for a moment. We saw what happened in the fishery. Entire communities, particularly in Newfoundland, faced hardship. You claim that the bill does not provide adequate protection for communities. My response to you would be that if you do not delimit habitats, you will end up with communities relying on social assistance, because right now, stocks in these zones cannot be replenished.

I agree on the need to protect species. I agree that we must make every possible effort to safeguard our environment, but you're saying that these communities should be compensated. Do you have any idea of the size of the marine environment? All coastlines in Canada are affected.

• 1700

[English]

Mr. Hassan Yussuff: In the context of species, you don't have human populations living along the coastline in every geographic area in this country. In some areas you do; in some areas you don't. But in this context, if we're committed to protecting the habitat and ensuring the species doesn't become another statistic, it's going to require dealing with these consequences as a community and recognizing that this act is put together as a result of the outcry from Canadians that we continue to lose species every day and that something needs to be done.

But part of it is that I think—my friend left earlier, and I wanted to comment about what he said—if a species has already made it onto the list, it's too far gone. We need to do things. Sustainable practice is not going to change anything. So there is a need for recognition that while the government has a strategy around sustainable practice, it hasn't worked.

I think my colleague also speaks about the necessity to deal with pollution control methods to ensure we don't get into this, because it has a lot to do with species at risk first appearing on the list because of the pollution they're dealing with in the context of this. This is going to be a challenge, but if we're sincere in protecting species at risk, we have to bring the Canadian population on side. I think Mr. Caccia made the point that we're not going to ask for there to be an uproar in the House, but I'm sure there's going to be an uproar in the House regardless of what species we're protecting if somebody's interest is being threatened. The question is, as a society, how much do we want to continue to destroy the natural ecosystem of this planet, and are we happy with the way things are? If we are, then we had better find another place to live and we had better set the timeframe when we're going to do that.

The Chair: Perhaps if I may be allowed to add a few words to what Mr. Yussuff just said, because we have a similar way of thinking....

Mr. Roy, you will recall from your knowledge of fisheries, I'm sure, the heavy fishing of the North Atlantic cod, la morue. The statistics that are available show heavy fishing in the range of 650,000 tonnes of cod in the 1970s and a decline to something like 200,000 to 250,000 tonnes in the 1980s, until almost 1988, when the cod was suddenly bringing in something like 40,000 to 50,000 tonnes a year in 1988, 1989, and 1990 until the moratorium was invoked.

At that point, of course, the fishery was stopped, and the economic consequences on the population of Newfoundland were disastrous, so much so that the Government of Canada had to launch the $1.9-billion program, TAGS. TAGS was a support program to keep the population where it is as a result of economic considerations, which were carried to the point of almost extinction.

Today, cod is on the list of special concern, so it is still there almost 10 years later. It is a classic case of having to recognize that there is a point in the exploitation of a species at which environmental and economic considerations are one and the same. They converge very rapidly, very strongly, and they force us to take some preventive measures. The question is whether this legislation can do that.

[Translation]

Mr. Jean-Yves Roy: I agree with you. I'm not prepared to discuss the matter with the committee chair. I fully agree with the need to protect species, but that's not my point. I'm far from opposed to this idea. My question is as follows: Is the Canadian government prepared to deal with the consequences of protecting all species? I'm talking in terms of communities, not from a scientific viewpoint and from the standpoint of species protection. In so far as possible, the bill will attempt... I'm talking about the impact this will have on communities, on people. Is the Canadian government prepared to invest as much in this program as it did in TAGS? Is it prepared right now to help communities financially? I'm not certain that it is. That's what I wanted to get at. What would happen if the bill's provisions were implemented?

• 1705

The Chair: The answer is probably yes, since there is a bill that purports to do that. In addition, a three-year $90 million compensation program has been announced by the minister. We'll see if this amount is adequate in terms of compensation. However, the political will exists and the answer to your question is yes. We hope this initiative will prove more or less effective.

[English]

Madame Kraft Sloan, I apologize for the interruption.

Mrs. Karen Kraft Sloan: Thank you, Mr. Chair.

More to the point, is this bill going to be effective at all in protecting species at risk? I have to tell you that there is a huge weight of evidence that paints a very dismal picture for us that this bill will not be able to do that because of so many flaws in the legislation itself.

One of the things we hear from people around this table who are detractors of good, effective endangered species legislation is this idea of a shoot, shovel, and shut up syndrome that exists out there. I'm not entirely sure, but in the context of marine environments, perhaps we should say drown, shovel, and shut up.

Other than the odd anecdotal story, I wonder if any of the witnesses know of documented evidence of the shoot, shovel, shut up syndrome. Have you heard of this before?

The idea is that it comes out of what has happened with the American endangered species legislation, that in order to avoid prosecutions under the act, they shoot an endangered species and bury it, and then they just keep their mouths shut about it. We have been told by witnesses that we can only have discretionary elements in this bill because of the fear of shoot, shovel, and shut up, and anything that works to strengthen this particular legislation will only lead to the decline of species at risk in Canada because of shoot, shovel, and shut up.

My favourite line is to ask all our witnesses for documented evidence, and I have yet to see anything in writing that has been peer reviewed or that can be substantiated. So I wonder if you're familiar with this and if you know of any documented evidence.

Prof. Scott Wallace: I know in the marine environment they have two species on the west coast, the sea otter and the abalone, that are listed. Right now, the abalone is poached; there's a tremendous amount of poaching going on. Sea otters are hunted by shellfish fishermen, just silently.

Along with this act, there's going to have to be adequate funding for the enforcement of it. There has to be a fear of conducting these types of crimes. Right now, the courts don't consider crimes against wildlife as that; it's just kind of the cost of doing business in the case of a lot of the poaching.

Ms. Karen Kraft Sloan: That's poaching; that's not killing it to get it off your land so that you don't have to worry about what's going to happen to your land values or something like that. This is someone who is actually going out and poaching and killing the species for their own particular gain, not because they have inadvertently killed the species and don't want anyone to find out about it. Is that correct?

Prof. Scott Wallace: I guess, in a marine environment, since it's not private land—

Ms. Karen Kraft Sloan: Yes, exactly.

Prof. Scott Wallace: —you don't have the same problem.

Ms. Karen Kraft Sloan: Dave and Mr. Yussuff, do you happen to have—

Mr. Hassan Yussuff: I don't have any specific example to give you, but I'm one of those who has a lot of confidence in our citizens that if they're aware of the endangered species in the vicinity in which they reside in the community, they will do the right thing. The majority of them will. But it doesn't mean that others aren't going to violate that principle.

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In the context of an endangered species act, I think there's a necessity for government to work with community organizations and all of those who are interested in ensuring that the natural heritage of this country is protected. That will require a lot of education, because far too often with species that are endangered—and the community is not aware—they may or not change their habits. You'd be surprised at what people are prepared to do if they recognize...they will restore the stock of that particular species; they will do something.

I think Mr. Roy's point about the fishing industry is a classic one. Had fishermen known long before that this was such a difficult problem, they would have done things, including the unions, who would have worked with scientists and government to find solutions. But one morning they woke up and 20,000 workers lost their jobs, and of course they're resentful of the process that led to that.

I think when we see the signs, we ought to do the right thing, and that means involving citizens in developing strategies as to how we respond, because people don't take lightly losing their jobs and their livelihoods in their communities if they don't feel the government is responding. I think the signs are very evident around this regarding endangered species in a lot of areas. Our community would like to know what they can do to make a difference. I think this requires a different approach to how we respond to this, because I think citizens and workers will respond. I don't think everybody will speak in regard to some of my colleagues who may have been to this committee before.

Mrs. Karen Kraft Sloan: Thank you.

Dr. Wallace, you mentioned this problem with poaching and breaking the law. This committee did a study on enforcement of environmental legislation and we found some very disturbing results. At that time there was only one enforcement officer in the Maritimes and there were five people who gave out parking tickets on Parliament Hill. I understand the department is doing something to rectify the problem, but there is a reality out there, and enforcement is always a huge issue.

At last year's eco-summit, one of the big conclusions was that we do have some good environmental legislation; we need to enforce it and we need to act on it.

On page 15 you talked about the importance of citizen suits. Citizen suits are in CEPA. They were in Bill C-65. I'm wondering if you would like to add other comments about citizen suits and the importance of citizen suits. Certainly, Mr. Bennett and Mr. Yussuff, if you'd like to talk to citizen suits, I'd appreciate hearing that.

Prof. Scott Wallace: I'd like to say that that one is actually the exclusive edition from my co-writer, David Boyd, who's a lawyer, and I'm just...well, not just, but I'm an ecologist. He included that as being fundamental, extremely important, and I'm sure he'd be willing to talk to that if you want to approach him. That goes for anybody on this committee who wants to speak to David directly about some of the legal components of this.

Mr. David Bennett: Just one very quick observation. Certainly, citizen suits are in CEPA, but from what this committee has heard, the scope for actually making use of those provisions is in fact exceedingly limited.

We worked out a position under Bill C-65 whereby if citizens' rights over recovery plans were not considered, we advocated the right to sue. That was actually a very limited right. We didn't say we're going to sue if you haven't given the money; all we were saying is that citizens should have the right to sue if the formal requirements of the bill weren't met in the pursuit of recovery plans.

Now, with Bill C-5, as you can see, we've taken a somewhat different approach in saying that if these rights under the bill, as revised by this committee, are not met, then there should be an appeal process in order to restore those rights and, if necessary, do the whole thing over again, respecting the participation of workers and communities, which, with experience with other pieces of legislation, is actually a far more effective and far less legalistic procedure than going to court to sue, on the grounds that administrative tribunals usually do things much more effectively, much more quickly, and at less cost than the right to sue.

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So, if you like, there is a surrogate right to sue that we've put forward. The principle is still there. The practice is actually somewhat different from the position we took over Bill C-65. We would like the committee to consider whether the court system is the best avenue for disputes over endangered species. We would ask them to consider whether there are more effective ways of meeting the concerns of all parties, including workers and communities, which don't involve as much cost delay and effort expended. Also when you get into the court system you're basically dealing with an adversarial system. If this act works properly, we wouldn't want to see that happen.

So it's asking the committee to consider the sorts of approaches that we've taken in this submission.

The Chair: Last question, please.

Mrs. Karen Kraft Sloan: You're talking about when the recovery process hasn't undertaken the proper process, as set out in the legislation, and citizens or communities feel their rights have been sidestepped. What about in the case where a citizen feels the government is not properly enforcing the legislation?

Mr. David Bennett: That's partly dealt with in what a lot of people have said...if the listing of species is done properly, then the enforcement will be built into the process. If the decision is made that species are listed on scientific grounds, a whole series of things have to follow. If those things aren't followed, my guess, and it's only a guess, is that you could have a judicial review of the procedure, but you wouldn't need provisions to protect enforcement as such.

Mrs. Karen Kraft Sloan: Thank you.

The Chair: Madam Redman.

Mrs. Karen Redman: Thank you, Mr. Chairperson. It's interesting to hear the variety of points of view. We've heard so many witnesses, and, as I know you're all well aware, this legislation has been fruitfully debated for some seven years now. We actually heard from some witnesses yesterday who were encouraging this committee to scrap this bill. Yet that's not something I'm hearing today.

This bill is predicated on the fact that there are species at risk as we sit here speaking. Ranchers, fishers, farmers, and Canadians right across this country value species and their habitat and are actually undertaking stewardship on a voluntary basis. I've heard you speak about the government providing leadership. Again, the federal government is willing to provide leadership, being very cognizant and respectful of the fact that provincial and territorial governments do have a role to play, as well as aboriginal leaders. I think that's been incorporated.

We had a witness from the aboriginal community tell us that in some ways this had raised the bar as far as bringing in aboriginal traditional knowledge. I know all of you have spoken in support of that.

This bill also contains the backstops, the safety nets, where the federal government can act if they feel provincial or territorial governments are not stepping up to the plate to do their bit. It also has the ability to have fines and jail terms if there is wilful destruction.

Dr. Wallace, I would agree with you; I think your poaching example is probably pretty analogous to some of the stories I've heard from the United States. This bill has tried to engage—and I hate the word “stakeholders” because I think in a very large way all of us are stakeholders in this. It looks at the recovery process. It looks at engaging the people who are affected.

I guess I'm just a little bit curious, and I go back to the fact that I'm hearing a request from I think Mr. Bennett to talk specifically about engaging community...how you feel that is not being addressed in the expanse of consultation processes built into this bill.

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Mr. David Bennett: I think you're quite right that there is some semblance of a safety net provision in the bill. It's similar to what exists in other pieces of federal environmental legislation. But it's very tentative in this bill.

The other point we'd like to emphasize is that the experience of the federal government actually using safety net provisions is in fact pretty thin. When you look at federal legislation that's been delegated to provinces and the federal government's record in ensuring that the provinces live up to the terms of federal legislation in their administration of these acts, the record is in fact pitiful. So we don't have any confidence that the safety net provision, as in this bill, is going to be effective.

In the past, over Bill C-65, we made the point very strongly that the federal government should lay down an endangered species act, or a species at risk act, for the whole country in very strong terms, including in habitat protection and requiring the provinces to meet the terms of this act. If the provinces did not then do so, the federal government would step in and ensure that the terms of the federal legislation were carried out in all parts of the country and in all environments.

This being Canada, it's understandable that all parties are very hesitant to do this type of thing, but after a century and a half of experience with the British North America Act and its successor, the Constitution Act, surely we've come to the point now of appreciating, or realizing, that the constitutional set-up Canada has to protect the environment is completely inadequate. A government that is genuinely interested in national environmental protection should take a strong, bold move, assert its jurisdiction over the Canadian environment, and provide a mechanism that enables the government to step in where provinces, territories, or any other party is not doing their job of protecting the environment.

It's perhaps too much to hope that this will happen, but any realistic appraisal of the scheme for protecting the environment in Canada would have to say the situation we're in is ridiculous. That is why you find in the bill this very tentative language about the safety net. By the standards of any country that's seriously interested in protecting endangered species, this is really pretty pitiful.

Mrs. Karen Redman: Can I ask you, do you get any comfort from the round table that the minister is obliged to convene as well as from the five-year review and the fact that everything is registered in the public registry? Does it bring you any comfort that Canadians will keep all governments' feet to the fire?

Mr. David Bennett: I'd have to ask the chair's permission to cite other areas of environmental protection, and in fact the consultations that have gone on with the provinces even prior to Bill C-65, that might throw some light on the future of the round table.

If you look at the whole harmonization procedure and the way the federal government has seen its role in the Canadian Council of Ministers of the Environment, the result has been, quite frankly, a total disaster. The federal government has backed off its role as the protector of the Canadian environment, regarding it as one minor party among many in the Canadian council.

But even if you stand aside and say that the purpose of CCME, for better or for worse, is harmonization, you have governments in CCME that are not interested one iota in harmonizing their environmental policies with their colleagues' in the ministry.

So on both counts it seems to me that we really don't have a cause for hope here. There's no serious interest in harmonization of standards across the whole country, and there's certainly no interest in having the federal government assert its authority over the Canadian environment.

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As for consultation mechanisms, no one is going to condemn them simply because chances are they're going to end up as talking shops. You have to give every opportunity for these mechanisms to work their way through. But what really lies behind this is political will, and the government does not seem to have the political will to take on any party, whether it be business, governments, or communities, in asserting its authority over the Canadian environment. So one does have a right to be skeptical and pessimistic about whether the consultation mechanisms that have been set up are going to be effective at all.

Mr. Hassan Yussuff: I don't want to add too much to what my colleague has just said except to recognize that we're talking about the national treasures of our country. The federal government, I think, in this context of devising a bill to deal with the magnitude of the problem needs to recognize that you're never going to have the provinces onside because of the political and economic interests that may prevent them from doing so.

The national heritage of this country regarding species belongs to all Canadians, not just Canadians who happen to have the luxury to live in a province where their environment minister happens to be enlightened about the challenges that need to be dealt with and the political will to do something to ensure that measures required to resolve the issues around particular species or habitats are met.

Given the kind of federation we're living in, I don't have a lot of hope in terms of what some of the provinces may or may not do.

The Chair: As a last question here, let us for a moment assume that it will be very difficult to arrive at legislation that will do the job the way that many in this room would like it to perform. Let us also assume for a moment that whatever will be the shortcomings of the legislation, a well-informed and well-educated population could make up for some of those shortcomings. In other words, a public education program could go a long way towards involving citizens in generating a certain consciousness and a certain desire to protect the culture of wildlife.

Against these two assumptions, and considering the important role the Canadian Labour Congress plays through its affiliated membership and so on, would you see in clause 127, convening of a round table, a role that the CLC would be willing to participate in actively?

Mr. Hassan Yussuff: Yes, I think in regard to an education campaign and the government providing some resources, we definitely will. Again, during the many times this piece of legislation has come before this committee, we have come here to testify in support of the legislation every time. We're here again today to say that.

We see ourselves as having a tremendous role to play, including dealing with some of the difficulties we have among our own members and leadership. You have to recognize that we're a broad movement and as in the caucus and the government there are many diverse opinions. We can accommodate them, but I think education can go a long way in getting people to change their habits and their thinking and to deal with the challenges we all have to come to terms with as Canadians.

We're not just here speaking as a workers' organization. We're here speaking as Canadians. We do believe there are fundamental challenges in terms of what's going on in this country and similarly around the world. We would strongly support that, if there is education, the labour movement be asked to play a significant role. Because it's not only our members but also our members and their families.

The Chair: Are there any further questions?

We thank you very much, Mr. Yussuff, Mr. Bennett, and Dr. Wallace for bringing your knowledge to the table. We look forward to further consultations.

This meeting is adjourned.