[Recorded by Electronic Apparatus]
Tuesday, January 28, 1997
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[English]
The Chairman: We should start on time so that we make best use of this occasion.
We are the members of the Standing Committee on Environment and Sustainable Development. Starting with Mr. Taylor, perhaps I will ask the members who are present to introduce themselves.
Mr. Taylor (The Battlefords - Meadow Lake): Thank you very much, Mr. Chairman.
My name is Len Taylor. I am the New Democratic Party member of the committee. I'm an associate member, and I'm pleased to be here.
Mr. Knutson (Elgin - Norfolk): My name is Gar Knutson. I am the member of Parliament for Elgin - Norfolk. It's a riding on Lake Erie, in southwestern Ontario.
Mr. Steckle (Huron - Bruce): I'm Paul Steckle, a member of Parliament from southwestern Ontario, and the riding of Huron - Bruce. I'm a member sitting on the government side of this committee.
Mr. Tom Curran (Committee Researcher): My name is Tom Curran. I'm with the research branch of the Library of Parliament. I work with the committee in a research capacity.
Ms Kristen Douglas (Committee Researcher): I'm Kristen Douglas. I'm also a researcher with the committee, and I'm here from the research branch of the Library of Parliament.
The Chairman: Normand Radford, who is out of the room, is the clerk of the committee. And I'm Charles Caccia, from the riding of Davenport in the forest area of downtown Toronto.
Other members will join us very soon, but because time is so precious we would like to invite you to start your presentations so that there can also be a good period of questions and answers.
I understand that Shirley Adamson is the grand chief. We welcome you and the members of your group. Perhaps you would like to introduce them.
Grand Chief Shirley Adamson (Council of Yukon First Nations): Thank you very much. I am the grand chief of the Council of Yukon First Nations. With me is Ed Schultz, who is accompanying me as my assistant at this point. I will allow the other members of the group to introduce themselves.
Ms Shirley Ford (Chair, Bill C-65 Working Group, Yukon Fish and Wildlife Management Board): I'm Shirley Ford, with the Yukon Fish and Wildlife Management Board.
Mr. Mike Smith (Chair, Yukon Fish and Wildlife Management Board): I'm Mike Smith. I'm chair of the Yukon Fish and Wildlife Management Board.
Mr. Russel Tait (President, Yukon Fish and Game Association): My name is Russ Tait. I'm the president of the Yukon Fish and Game Association.
Mr. Clayton White (Vice-President, Yukon Fish and Game Association): My name is Clayton White. I'm vice-president of the Yukon Fish and Game Association.
The Chairman: Good, thank you. Again, welcome.
Would you like to start? We have an allocation of time of fifteen minutes for each organization. At about ten minutes, I will give a little signal so that you know you have another five. We'll start without delay. The floor is yours.
Grand Chief Adamson: Thank you very much, Mr. Chairman.
On behalf of the Tlingit, Tagish, Han, Gwitchin, Southern and Northern Tutchone first nations in the Yukon Territory, I would like to thank the Standing Committee on Environment and Sustainable Development for the opportunity to present our comments and concerns regarding Bill C-65, the Canada Endangered Species Protection Act.
By way of introduction I would like to provide the members of the standing committee with background on the Council of Yukon First Nations, otherwise known and the CYFN. The CYFN is the central government of the eleven member Yukon first nations. At our 1996 general assembly, the member Yukon first nations delegated to the CYFN the legislative powers in accordance with their self-government agreements, empowering the CYFN to enact specific laws on their behalf.
In addition, the CYFN is mandated to represent and advocate the interests of its member Yukon first nations in relation to territorial, national and international issues. However, this does not prejudice nor preclude the Yukon first nations from exercising their rights to respond to issues on their own accord.
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Over the last 30 years the Yukon first nations have struggled to negotiate and complete agreements with both the territorial and federal governments for the settlement of outstanding land claims and self-government agreements in the Yukon.
In 1994 four Yukon first nations finalized their final and self-government agreements based on the provisions of the umbrella final agreement, also known as the UFA. The four have specific comments they wish to have read into the record, and I shall do that immediately following this presentation.
The final agreements of the first four Yukon first nations were subsequently ratified and brought into legal effect in 1995 by Parliament and the Yukon legislative assembly. At present, a number of Yukon first nations are finalizing their agreements, while others continue to negotiate their agreements.
The umbrella final agreement established the authorities and processes for the management of fish and wildlife and their habitats within the Yukon, specifically the Yukon Fish and Wildlife Management Board. The board is the primary instrument of fish and wildlife management in the Yukon. The board is comprised of six nominees of Yukon first nations and six nominees of government. The board, acting in the public interest and consistent with the principles of the umbrella final agreement in taking into account all relevant factors, including recommendations of the renewable resources councils, may make recommendations to the minister, to Yukon first nations, and to the renewable resources councils on all matters related to fish and wildlife management, legislation, research, policies, and programs.
In particular, I note that the board may make recommendations to the minister on the need for the content and timing of all Yukon fish and wildlife management plans; for species included in international agreements; threatened species or populations; species or populations declared by the minister as being of a territorial, national, or international interest; and transplanted populations and exotic species.
In addition, the umbrella final agreement provides that in each of the 14 Yukon first nations traditional territories, the renewable resources council, the RRC, is the primary instrument for local renewable resources management in that traditional territory as set out in that final agreement. Each RRC consists of three nominees of the Yukon first nations and three nominees of government.
Each RRC, acting in the public interest and consistent with the principles of the UFA, may make recommendations to the Government of Yukon, the affected Yukon first nations, and the board on any matter related to conservation of fish and wildlife. In particular, each RRC may make recommendations to the Fish and Wildlife Management Board regarding local management concerns for threatened species or populations.
The umbrella final agreement provides that Yukon first nations will retain over 16,000 square miles of land in the Yukon. Within those lands Yukon first nations have the power and responsibility to manage local populations of fish and wildlife.
The umbrella final agreement ensures that Yukon first nations have input into the management of fish and wildlife in the Yukon. As stated earlier, our people are participants of the Yukon Fish and Wildlife Management Board and renewable resources councils. This participation is crucial to ensure that fish and wildlife in the Yukon is managed in accordance with our cultural values, traditions, and knowledge.
For thousands of years Yukon first nations people have harvested migrating water fowl and mammals for our subsistence needs. In our opinion, Bill C-65 compromises the Yukon first nations way of life and harvesting rights since it appears to usurp the jurisdictional role of Yukon first nations, including the authority and jurisdiction of the fish and wildlife management bodies and structures established within the UFA.
Here are our general concerns.
Bill C-65, combined with other federal legislation, such as the Migratory Birds Convention Act, the Fisheries Act, Bill C-68 - the federal gun control legislation - and international agreements such as the Pacific salmon treaty, jeopardizes the right of Yukon first nations to exercise our right to fish and harvest for subsistence needs.
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The umbrella final agreement provides that a Yukon first nations person's right to harvest for subsistence can be restricted only for public health, public safety or conservation. For the purposes of the umbrella final agreement, ``conservation'' means the management of fish and wildlife populations and habitats and the regulation of users to ensure the quality, diversity and long-term optimum productivity of fish and wildlife populations, with a primary goal of ensuring a sustainable harvest and its proper utilization.
The manner in which Bill C-65 has been developed contravenes the spirit and intent of the Yukon first nations agreements. Bill C-65 appears to be driven by southern-based interest groups that also support the anti-fur-trapping movements. In addition, these very same are lobbying to protect large tracts of land as national parks. Yet these groups do not consider the practical reality of northern Canada. Furthermore, they do not understand or acknowledge the significance of the land claim settlements reached with first nations across northern Canada, including Yukon first nations.
Bill C-65 serves to provide the Government of Canada and southern-based non-governmental organizations with greater management authority in relation to fish and wildlife in the Yukon than that possessed by Yukon first nations, the Yukon Fish and Wildlife Management Board, the renewable resources councils, and the Government of Yukon. It will be demeaning and paternalistic for our resources to be managed by people who do not live in the north or understand our cultural values and traditions.
We now have specific concerns with Bill C-65. First, the preamble states that the lack of scientific information should not postpone the Government of Canada's ability to act on preventative measures. If adequate research is unavailable, what criteria will be used to make a judgment to implement measures of Bill C-65?
Second, the preamble should confirm that Yukon first nations, the Yukon Fish and Wildlife Management Board, and the renewable resources councils have been established as management authorities for fish and wildlife in the Yukon.
Third, throughout Bill C-65, including the definitions section, there is no reference to the authority of territorial ministers in relation to management of fish and wildlife in the Yukon.
Fourth, subclause 3(3) of Bill C-65 provides for a broad application of the legislation to settlement lands; that is, those lands retained by Yukon first nations. Subclause 3(4) does not allow for Yukon first nation involvement in relation to making any agreement on any measures to be implemented on settlement lands.
Fifth, clauses 30 to 33 prohibit a harvesting of certain species. Article 16.4.2 of the UFA provides that the harvesting rights may only be restricted for public health, public safety or conservation.
Sixth, article 16.3.3.2 of the UFA provides that government must consult with the affected Yukon first nation prior to imposing any limitations to harvesting for subsistence needs. The UFA provides a comprehensive definition of ``consultation'' in order to ensure that Yukon first nations have input into any measures implemented by government to restrict their harvesting rights. In particular, consultation means to provide: (a) to the party to be consulted, notice of a matter to be decided in sufficient form and detail to allow that party to prepare its views on the matter; (b) a reasonable period of time in which the party to be consulted may prepare its views on the matter, and an opportunity to present such views to the party obliged to consult; and (c) full and fair consideration by the party obliged to consult of any views presented.
To date, government has not fulfilled its obligation to consult with Yukon first nations in relation to restricting their harvesting rights in accordance with Bill C-65. In the spirit and intent of the consultation under the umbrella final agreement, Yukon first nations should have been involved with the drafting of Bill C-65.
Seventh, the self-government agreements of the Yukon first nations provide that Yukon first nations have the power to enact laws on settlement land in relation to gathering, hunting, trapping or fishing, and the protection of fish, wildlife and habitat. The principles of Bill C-65 appear to undermine that authority of the Yukon first nations to legislate on its settlement land.
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Eighth, clause 14 of Bill C-65 outlines the composition of the Committee on the Status of Endangered Wildlife in Canada. I note that there is no representation from first nations or the fish and wildlife management authorities established under the UFA on this board.
Ninth, clause 33 of Bill C-65 does not provide for consultation with the Yukon first nations, renewable resources councils, or the Yukon Fish and Wildlife Management Board when drafting regulations relating to cross-boundary species.
Tenth, clause 38 of Bill C-65 should identify the Yukon first nations renewable resources councils and the Yukon Fish and Wildlife Management Board as authorities to participate in the development of management plans.
Eleventh, clause 46 of Bill C-65 should ensure that any agreements or permits issued by the minister are consistent with harvesting provisions, including the allowable harvest limits established under the Yukon first nations final agreements.
Twelfth, clause 49 ensures that a responsible authority, as defined in the Canadian Environmental Assessment Act, must notify the minister in writing of any project that is likely to affect a wildlife species that is listed as vulnerable, threatened or endangered. It should be noted that the development assessment process established under the the umbrella final agreement will provide for a comprehensive review process in the Yukon. It is anticipated that the development assessment process will ensure that development proceeds in a manner that does not jeopardize future resources, including fish and wildlife and their habitat. Moreover, it appears likely that the Canadian Environmental Assessment Act will not apply in the Yukon upon the enactment of the development assessment legislation.
Thirteenth, clause 52 of Bill C-65 provides for search and seizure without warrant by enforcement officers in order to ensure compliance with the legislation. In addition to the proposed gun control legislation, the freedoms and rights of Yukon first nations people will likely be violated in the course of pursuing their traditional harvesting activities. This is unacceptable.
Fourteenth, Bill C-65 allows any citizen over the age of 18 to petition the responsible minister to conduct an investigation of whether an alleged offence has been committed, or whether anything directed toward its commission has been done. Furthermore, if the minister does not conduct the investigation or the minister's response to the investigation is unreasonable, then a citizen may bring an endangered species action in a court against the person who committed the offence alleged in the application for investigation. It is our belief that an enforcement process that relies on the judiciary, and which may promote frivolous applications for investigations, will not necessarily promote effective management of endangered species.
In closing, I confirm that the CYFN supports the need for all three orders of government to work in a coordinated fashion in order to ensure the protection of endangered species. However, the CYFN recommends that Bill C-65 be redrafted to accommodate the responsibilities and jurisdictions of the fish and wildlife management authorities established under the umbrella final agreement. In particular, the CYFN demands that any endangered species protection legislation recognize the jurisdictional role of the Yukon first nations government.
Yukon first nations will continue to pursue this issue on a government-to-government basis. If Bill C-65 is enacted in its present form, the CYFN will have no other alternative but to seek legal remedies to ensure compliance with the Yukon first nations final agreements.
I also have an addendum to this presentation, with specific concerns from the first nations of the Champagne and Aishihik, Na-Cho N'y'ak Dun, Teslin Tlingit, and Vuntut Gwitchin of the Yukon Territory. It's addressed to members of the standing committee, respecting the Canada Endangered Species Protection Act:
On February 14, 1995, the following Yukon first nations reached final and self-government agreements with the governments of Canada and Yukon: Champagne and Aishihik First Nations; Teslin Tlingit Council; First Nation of Na-Cho N'y'ak Dun; and Vuntut Gwitchin First Nation.
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It is our collective opinion that the proposed Canada Endangered Species Protection Act will be in breach of our final agreements signed with Canada. We are of this opinion due to the following reasons. First, under each of the final agreements for the Yukon First Nations, Canada is obligated to consult. This means that Canada is to provide to the party to be consulted: notice of a matter to be decided in sufficient form and detail to allow that party to prepare its views on the matter; a reasonable period of time in which the party to be consulted may prepare its views on the matter, and an opportunity to present such views to the party obliged to consult; and full and fair consideration by the party obliged to consult of any views presented.
The requirement to consult is outlined in section 16.5.4 of our respective final agreements, which states:
- Government shall consult with the Yukon First Nation prior to taking action on fish or wildlife
matters which may affect the Yukon First Nation's management responsibilities or the exercise
of harvesting rights under a Settlement Agreement of Yukon Indian people enrolled under that
Yukon First Nation Final Agreement.
Second, section 16.3.3 of our final agreement states:
- The exercise of rights under this Chapter is subject to limitations provided for elsewhere in
Settlement Agreements and to limitations provided in legislation enacted for purposes of
conservation, public health or public safety.
- Any limitation provided for in legislation pursuant to 16.3.3 must be consistent with this
Chapter, reasonably required to achieve those purposes and may only limit those rights to the
extent necessary to achieve those purposes.
- Government shall consult with the affected Yukon First Nation before imposing a limitation
pursuant to 16.3.3.
Third, our final agreements ensure that we shall have the right to harvest for subsistence within our respective traditional territories all species of fish and wildlife for ourselves and our families at all seasons of the year and in any numbers on settlement land and on crown land to which we have a right of access subject only to limitations provided in legislation enacted for purposes of conservation, public health or public safety.
The current proposals under clause 30 through to clause 33, which prohibit the killing of certain species, would have a significant impact on our treaty rights to harvest for our subsistence purposes.
Fourth, our self-government agreements ensure that we have the exclusive responsibility to regulate this treaty right to hunt within our traditional territory and for all local species on settlement land. As proposed, this bill will gut our inherent right to regulate and legislate with respect to the harvesting rights of our respective first nation citizens. This, we believe, is in breach of the crown's fiduciary duty as reflected in the Guerin and Sparrow cases.
Fifth, subclause 2(2), the ``for greater certainty'' subclause, states:
- For greater certainty, nothing in this Act is to be construed so as to abrogate or derogate from
any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of
the Constitution Act, 1982.
Sixth, for the foregoing reasons, it is our intention to challenge the constitutional validity of the Canada Endangered Species Protection Act if Canada continues to wantonly disregard our legitimate constitutional rights.
These comments are presented to the standing committee over the signatures of: Chief Paul Birckel, of the Champagne and Aishihik First Nations; Chief Robert Hagar, of the First Nation of Na-cho N'y'ak Dun; Chief Richard Sidney for the Teslin Tlingit Council; and Chief Randall Tetlichi, of the Vuntut Gwitchin First Nation.
I thank the standing committee for this opportunity to express the concerns of the Yukon first nations in relation to Bill C-65. I shall leave the original copy with the chair. Copies of this addendum have been left with the secretary. We are prepared to respond to any questions you may have.
Thank you.
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The Chairman: Thank you, Grand Chief Adamson.
In reverse order from your presentation, which is extremely helpful and will be studied very carefully by the members of the committee, might I say just this?
With respect to the brief submitted by Chief Paul Birckel, Chief Richard Sidney, Chief Robert Hager and Chief Randall Tetlichi, which was just read, and more precisely with respect to section 5, the committee would certainly welcome receiving the text of an alternative to subclause 2(2), which you read into the record:
- For greater certainty, nothing in this Act is to be construed so as to abrogate or derogate from
any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of
the Constitution Act, 1982.
Secondly, with respect to the first point in the same brief to the members of the standing committee, it is my understanding that there were extensive consultations by Environment Canada's departmental officials before the drafting of the bill. Therefore, I'm at a bit of a loss when trying to understand the claim that consultations did not take place, as you outline in item one.
Finally, with respect to your own brief, which contains a number of substantial points, I assure you that we will study them very carefully. I assure you that it is not the intention of this committee to promote any frivolous applications of investigations. On the contrary. Therefore, we are thinking along similar lines with respect to the role of the judiciary and the role of individual citizens.
That said, I want to thank you again.
We will proceed with the next speaker.
Grand Chief Adamson: Mr. Chair, before you do that, I'd like to let you know that your comments will be forwarded to the first four, but I cannot allow you to think that consultation has occurred. Consultation has not occurred in the Yukon and I would like that to be noted in the record.
Thank you.
The Chairman: We will certainly forward this information that you are giving to the committee to the people in Ottawa responsible for consultation. Thank you for having made that point once again.
We now invite the next group to the microphone, the Yukon Fish and Wildlife Management Board. Please go ahead.
Mr. Smith: Thank you very much, Mr. Chair and honourable members of the committee.
This is our first opportunity to make a presentation to you. Our principal concern is that if the bill goes in as it is written, we will be taken out of the loop in terms of consultation and in terms of our involvement in the management of wildlife, including endangered species.
The Yukon Fish and Wildlife Management Board thank you for this opportunity to make a presentation.
The board supports the concept of the Canada Endangered Species Protection Act and recognizes the importance of introducing legislation that will protect endangered species and their habitats. However, the Yukon Fish and Wildlife Management Board, along with other stakeholders in the Yukon Territory, has concerns about Bill C-65 and would like to address them at this time.
First of all, we would like to introduce ourselves and confirm with you our mandate as the Yukon Fish and Wildlife Management Board.
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The board was established through the enactment of settlement legislation bringing into effect the Yukon land claims final agreement, which came into force in February 1995. The board consists of twelve people, six chosen by Yukon first nations and six by the Government of Yukon.
The parties to the Yukon final agreement include Canada, the Government of Yukon, and the chairperson of the Council of Yukon First Nations. As signatories to the agreement, each party is legally bound to carry out their respective obligations as stated in the Yukon land claims final agreement. The Government of Canada, as party to this agreement, must respect the commitments it has made.
The board is identified by the agreement as the primary instrument of fish and wildlife management in the Yukon. It works in partnership with the renewable resources council in each of the traditional territories recognized by the agreement and with the Yukon government and Yukon first nations governments.
In proceeding with this bill without adequate consultation, Canada is ignoring its commitments under this agreement. Their cooperation is required by the agreement. The legislation that enacts Bill C-33 and Bill C-34 imposes the duty on all governments, the board, and the renewable resources councils to consult with Yukon people on fish and wildlife matters.
The board focuses its efforts on policies, legislation, and protective measures to protect habitat and guide management for wildlife today and for the future. The board influences management decisions in relation to wildlife issues through public education and by recommendation to either the Yukon or federal minister, as appropriate, and to the Yukon first nations governments. It bases recommendations on a balance of the best technical, traditional, and local information available to it.
Chapter 16 of the final agreement addresses fish and wildlife and is the longest and most complex of the chapters. It sets out a standard for Yukon wildlife management, characterized by four central features.
The first is conservation. Chapter 16 states that the management and harvesting of fish, wildlife and their habitats shall be governed by the principle of conservation - that is, to ensure the quality, the diversity, and the long-term optimum productivity of fish and wildlife populations, with the primary goal of ensuring a sustainable harvest and its proper utilization.
The second is co-management. Chapter 16 establishes a new way of managing that provides for full participation of all Yukon people. It also formally involves appointed members of the general public, both first nations people and others, as management partners serving on the renewable resources councils and on the Yukon Fish and Wildlife Management Board.
The third is certainty. Chapter 16 replaces the general harvesting rights of Yukon Indian people recognized by the Constitution of Canada with specific harvesting rights to meet subsistence needs within each first nations traditional territory. At the same time, the agreement ensures that a share of sustainable fish and wildlife harvest is available to others.
The fourth is consultation. It's very specifically defined as: one, to the party to be consulted, notice of the matter to be decided, in sufficient form and detail to allow that party to prepare its views on the matter; two, a reasonable period of time in which the party to be consulted may prepare its views on the matter, and an opportunity to present such views to the party obliged to consult; and three, a full and fair consideration by the party obliged to consult on any views presented.
The next topic is jurisdiction. In Yukon most lands and resources are currently owned and managed by the Government of Canada. Much development that can affect fish and wildlife and their habitats takes place on crown land and is regulated by laws passed by Parliament, including the Canadian Environmental Assessment Act, the Mining Act, the Fisheries Act, and the Yukon Act.
At the same time, the Yukon government has responsibilities, under section 17 of the Yukon Act, for managing wildlife and administering the management of freshwater fish in the territory. The Yukon government can comment on how wildlife may be affected by development proposals, but so far it has no rules setting out how developers should amend their projects to make them liveable for wildlife, and it has no powers on how these projects can be enforced.
Steps have to be taken now to put protection in place, or wildlife prospects will diminish year by year.
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The definition of ``conservation'' does not only refer to fish and wildlife populations; as well it explicitly includes their habitats. The board believes it has to be a strong advocate for wildlife habitat and is mandated to consider habitat conservation objectives.
Habitat protection laws are essential, and the board has advocated the inclusion of specific habitat protection measures in both federal and territorial laws and policies. To date we've had little success with governments, and we submit that the proposed bill has to be more effective.
The signatories place an onus on all parties of the umbrella final agreement to focus on the need for their effective communication to make the system work. This imposes obligations on the standing committee to take the board and the renewable resources councils seriously.
The overall intent of the land claims settlement agreement is to provide for a new way of managing fish and wildlife and their habitats through cooperation between first nations and governments and including the general public.
It's our view that the preamble should specifically recognize: one, the Yukon Fish and Wildlife Management Board's mandate as the primary instrument of fish and wildlife in the Yukon; two, the renewable resources councils as the primary instrument for local renewable resources management in that traditional territory, as set out in the settlement agreements; and three, the Yukon first nations who may manage local populations of fish and wildlife within settlement lands, to the extent that coordination with other fish and wildlife management programs is not considered necessary by the board.
The definitions should include consultation, as was cited before. Also, ``ministers'' should also include the Minister of Yukon Government and ``first nations governments'' should mean first nations governments as provided for in aboriginal land claims agreements.
Furthermore, on jurisdiction, the act does not apply equally to provinces and territories. The territories are different from the provinces in southern Canada, with the majority of their lands falling under federal jurisdiction.
Presently the Yukon territorial government and first nations have the responsibility for managing wildlife and administering the management of freshwater fish in the territory. The board is concerned that the proposed legislation will reintroduce the federal government as wildlife managers in the Yukon, seriously eroding the Yukon and first nations governments' responsibility in this field. Also, the question arises as to whether or not the federal government would have the resources, specifically dollars, to exercise this responsibility.
Under the UFA, the board, acting in the public interest and consistent with this chapter, taking into consideration all relevant factors, including recommendations of the councils, may make recommendations to the minister, to Yukon first nations, and to the councils on all matters related to fish and wildlife management, legislation, research, policies, and programs.
Further to this, the board may make recommendations to the minister on the need for and the content and timing of all Yukon fish and wildlife management plans for species included in international agreements; threatened species or populations; species or populations declared by the minister as being of territorial, national, or international interest; and transplanted populations and exotic species.
The next topic is habitat protection. According to the proposed act, the federal government has control of habitat protection. However, under the umbrella final agreement, the board and the renewable resources councils have control.
In the UFA, the definition of ``conservation'' includes habitat. Therefore the question of who has control over habitat is in conflict with Bill C-65. Furthermore, each renewable resources council is specifically established to address local issues, including habitat, in the relevant traditional territory for which the council was established.
Conflicts between resource development and habitat protection could develop. Local management through the renewable resources councils would be most effective in dealing with potential conflicts.
It becomes clear that here in the north, we must manage our fish and wildlife and their habitats, because of the authority under the umbrella final agreement and the Yukon Act. To manage a species, you must also manage their habitat.
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On recovery and management plans, the board agrees with the submission made to you by the Nunavut Wildlife Management Board regarding modifications to clauses 38 and 45 of the bill. The agreement is very clear that recovery plans and management plans such as those described in the Canada Endangered Species Protection Act dealing with wildlife and wildlife habitat in the Yukon land claims final agreements must undergo the approval process set out in the agreements. Accordingly, the board suggests the following modifications to clauses 38 and 45.
The new provision of clause 38 would read:
- (3) The recovery plan shall be subject to a process of approval where required under applicable
aboriginal land claims legislation.
- (2) The management plan must be prepared in consultation with any wildlife management
board that is established under aboriginal land claims legislation and is affected by the plan.
- (3) The management plan shall be subject to a process of approval where are required under
applicable aboriginal land legislation.
- These subclauses would be followed by subclauses (4) and (5), formerly subclauses (2) and (3).
Finally, the Yukon Fish and Wildlife Management Board has made minor changes, but endorses the following provisions set out in the Victoria Times Colonist article of December 13, 1995, addressing the endangered species in Canada:
- The first one requires the protection of all endangered species across Canada, consistent with aboriginal land claims legislation, including freshwater species, species north of 60 degrees, and species that range across provincial and national borders.
- The second provides mandatory protection by the appropriate authority for any critical habitat of an endangered species at risk, not just on federal lands.
- The third requires the preparation and implementation by the appropriate authority of an ecosystem-based recovery plan for all endangered species and threatened species, because no one has the right to choose simply to allow a species to go extinct.
- The fourth prohibits killing or harming endangered species, except in the case of emergency or survival.
- The fifth requires advance review of projects and land developments that will effect species at risk, or their habitat.
- The sixth does not allow exemptions of any activity that will threaten the survival of any species.
- The last one provides a national safety net to ensure species don't go extinct because of provincial or territorial inaction.
In conclusion, although the Yukon Fish and Wildlife Management Board supports the concept of the proposed Bill C-65, it is our position that it will be strengthened by the recommended changes that we have submitted to you.
Under the Yukon land claims final agreements, the board is the primary instrument for the management of fish and wildlife and their habitats in the Yukon, and must be recognized by this legislation. Effective legislation will assist the management authorities outlined in settlement legislation in the Yukon to carry out their powers and responsibilities.
The north is unique and the species that occupy the north are also unique. Species that may be threatened or vulnerable in the south are not necessarily so in the Yukon. This fact must also be taken into consideration. The Standing Committee on Environment and Sustainable Development must ensure that consultation with all parties and users of Yukon fish and wildlife, including habitat, as contemplated in the aboriginal land claims legislation.
The board strongly recommends that the Standing Committee on Environment and Sustainable Development consider and adopt our recommendations.
Again, we thank you for this opportunity to make this presentation to you on the proposed bill.
The Chairman: Yes, and we thank you too, Mr. Smith, for your submission. It is also very comprehensive, quite encompassing and quite helpful. We will pay a lot of attention to its contents.
Let me also say that today, here in this room, we are having a consultation. It is perhaps the most important consultation, because at least there is now a piece of paper to look at, that being the draft bill. The intent of this hearing today is to consult on something that is visible and transparent. Whereas past consultations, incomplete as they may have been, as Grand Chief Adamson has already drawn our attention to, were discussions on something hypothetical, today we have something to look at. Therefore I hope you will consider this meeting here as an important consultation. We will listen very carefully to what you have said, as we have with Grand Chief Adamson.
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Who would like to be next?
Mr. Tait: Thank you, Mr. Chairman and honourable members of the standing committee. My name is Russ Tait. I am the president of the Yukon Fish and Game Association.
I will go through our submission fairly closely, but before I begin I would like to make a few comments in a general sense.
First of all, the Fish and Game Association is in a different situation from that of the Council of Yukon First Nations or the Fish and Wildlife Management Board. I'm not certain whether of not the members of this committee have it clear in their minds the relationship between the two levels of government in Yukon, being the Council of Yukon First Nations and the Government of Yukon, and then below that the Yukon Fish and Wildlife Management Board and the renewable resources councils at a local level.
When we get to the question and answer period, it is critical that you understand how that system works and that the the system works effectively, giving all Yukoners a voice in the well-being of wildlife.
The Chairman: You're quite right, Mr. Tait, and we do. At the same time, though, it's important that we stress that in the system we operate under, you have a very effective and important channel of communication with Ottawa through your member of Parliament, and therefore you're not operating in a vacuum. It is a very important link between you and Ottawa.
Mr. Tait: Mr. Chairman, perhaps I could conclude my statement and then we'll have a question and answer at the end of it.
As to the statement that we're not living in a vacuum, to give you some background, I've lived there my entire life, so I am a very good witness of the system and how it works, and in this day and age the Yukon is experiencing devolution of powers from Ottawa to us. It has been wonderful for us to finally have the authority to manage ourselves rather than going to Ottawa and asking for permission to do things.
I look at it in very real terms through this level of consultation. We're consulting with you and you're listening. I hope some of you are listening; some may not be listening. We're asking for something, and what happens when we get to Ottawa happens. It may not be what is in the best interests of Yukoners.
In the system as it now works, it is set up so we can make that decision at a local level. The crux of our presentation today will be to attempt to show you that we feel the authority to manage wildlife should remain with the effective system that is working well in the Yukon.
It is very important to understand that all of us have a very close relationship with wildlife and the land in the Yukon, both first nations and non-first-nations members. It is a daily reality for me, my family, and people around me to be close to wildlife and make use of wildlife. It is a very real part of our life, as opposed to when I walk around a concrete jungle in Vancouver and ponder the question: How important is wildlife to Joe Public on the street in Vancouver, and how much of a reality is it in their situation compared to ours?
It is with those things in mind that we bring you this presentation.
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We represent a non-profit organization in the Yukon that has been together for 52 years now. The Yukon Fish and Game Association is the Yukon's oldest and largest conservation organization. For 52 years we have been dedicated to the conservation and wise use of our natural resources.
The Yukon Fish and Game Association is the Yukon's affiliate to the Canadian Wildlife Federation, or CWF, Canada's largest conservation organization. The CWF was instrumental in the creation of the Committee on the Status of Endangered Wildlife in Canada, COSEWIC, and continues to be an active participant in this committee. I'm on the board of directors of the Canadian Wildlife Federation, as is my colleague, Mr. White, so we're aware of this procedure through them as well.
The Yukon Fish and Game Association wishes to thank the committee for the opportunity to make this submission.
We do support the principles of the national accord for the protection of species at risk. We recognize the need for national legislation in the field of endangered species protection. However, we do have a number of very specific concerns with the proposed act.
The act's application in the Yukon seriously erodes the Yukon's mandate and responsibility in the field of wildlife management as delegated by the federal government in 1900. That's what I was referring to when I talked about the system that is working effectively right now.
In our view, the act's application in the Yukon and the Northwest Territories has been changed in recent months simply to increase the total percentage of Canada included in the act. This is being done without any meaningful consultation in the north, where the act will have the most impact.
The Yukon Fish and Game Association has serious concerns about the ability of the federal government to deliver this program and has miscellaneous concerns with COSEWIC.
With respect to authority for wildlife management in the Yukon, in July 1900 the federal government passed legislation granting the Yukon authority to legislate over its wildlife resources. Regrettably, the authority to manage habitat was never turned over to the Yukon. And to this day, the authority to manage habitat remains with Ottawa. It is of concern to us because on several occasions throughout the year circumstances come up where the Government of the Yukon says ``That is not our jurisdiction.'' It creates great difficulty.
Mr. Chairman, you were saying that we're not in a vacuum, but it is very difficult to effect change when we're dealing with a situation in which Ottawa has the exclusive authority.
The Yukon government has been effectively managing the wildlife resources in the Yukon for more than 90 years. The government, in cooperation with groups like the Yukon Fish and Game Association, has also been active in many projects that involve the protection and recovery of endangered species. The following are two examples of such projects. And let me remind the committee that the status of wildlife in the Yukon is of utmost concern not only to the Yukon Fish and Game Association, but to all of the groups here. We are primarily concerned with the best interests of wildlife and therefore we feel that we should have the primary authority to manage that wildlife.
These two examples are programs that have been carried out in the Yukon specifically with endangered species.
The Yukon government has participated in the national wood bison recovery program since 1980. Since its inception, the wood bison project has cost approximately $1 million. Over 80% of this funding was contributed by the Yukon government and only about $170,000 came from external funding.
A total of 142 bison were brought into the Yukon from Elk Island National Park as part of the reintroduction project. The herd is now estimated at 300 animals, and a new five-year management plan is currently under review.
The plan recommends a population goal of about 500 bison by the year 2000. The plan also calls for a very limited harvest of some of the mature bulls to keep the population healthy. This would be illegal under Bill C-65, as it now stands.
The Yukon government has also done extensive work on a recovery program for the peregrine falcon in the Yukon. The peregrine falcon is the only endangered Yukon bird species. Since 1965, the Yukon government has spent approximately $0.5 million on surveys and recovery work for the falcon.
The proposed legislation will reintroduce the federal government as wildlife managers in the Yukon, seriously eroding the Yukon's mandate and responsibility in this field.
The act will apply on land within the Yukon and Northwest Territories, not just on federal lands or national parks, as in the provinces. This includes lands transferred to YTG, which are called commissioner's lands, as well as privately owned land and first nations settlement land.
Even if subclause 3(3) were to apply only to federal lands in the Yukon, this would be of little comfort, given the fact that 87% of the land in the Yukon is federal land. Only 4% is commissioner's land and 9% is first nations settlement land.
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Subcluase 3(3), as written, extracts responsibility for managing all endangered wildlife from the Yukon, where it has effectively remained since the turn of the century, and places it in the hands of the federal government. By omission, this section also restates the federal government's intention to manage all wildlife habitat in the Yukon. Again, that is something we feel strongly about. It would be better left in the hands of the system that we have in place with the two levels of government, the Yukon Fish and Wildlife Management Board and the renewable resource councils.
The Yukon Fish and Game Association recommends that the primary responsibility to manage wildlife should remain with local interests. The Government of Yukon, the Yukon Fish and Wildlife Management Board, and the renewable resource councils have brought into effect the Yukon First Nations Land Claims Settlement Act. The primacy of local responsibility is mentioned in the federally-sponsored discussion document of 1995, ``A National Approach to Endangered Species and Conservation in Canada'', which I would hope you are all very aware of. And we also recommend that responsibilty to manage habitat be transferred to the Yukon.
On the percentage of Canada included in the act and the lack of meaningful consultation with people in the north, the federally sponsored discussion document of 1995, ``A National Approach to Endangered Species and Conservation in Canada'', did not include the Yukon and the Northwest Territories in the broad application of this act. The federal government was then criticized by some groups because the act did not include a large enough percentage of Canada. We justly heard some of those criticisms yesterday from members from B.C., who spoke of the small percentage of B.C. that was effectively covered by this act. The solution to this problem was to simply add the two territories, increasing the percentage of Canada under application from less than 8% to the 60% that is so proudly stated in the summary of the act - and I refer to this summary in here, where it refers severeal times to the 60% figure. It's a pat on the back, in our view.
This change in application was done without consulting the people who would be most affected by the change: those of us in the north. First nations final agreements include a requirement under the Canadian Constitution that government shall consult with the effected Yukon first nations before imposing a limitation on the exercise of rights. This consultation requirement is activated if it is the intent of the federal government to apply this act to Yukon first nations people. In our opinion, this act would be hypocritical if it did not apply equally to all Yukon people. We feel strongly that the federal government has an obligation to consult with all northerners before enacting such legislation.
So we don't know whether there's a hidden attempt in this through the lack of consultation with first nations. Would it be separated, as in Bill C-68, when they say that it won't apply? What is the intent within that - or was it an oversight? Where did that come from? That is a question we would like to have answered later on.
The Yukon Fish and Game Association recommends that the federal government consult with northern governments, the people they serve, and the appropriate boards and councils prior to removing the right of the territories to manage wildlife.
On the federal government's inability to deliver the requirements of the act, as previously outlined, the territories have traditionally managed wildlife and participated in the endangered species conservation projects in much the same manner as provincial governments. We are concerned that the federal government does not have the capacity to take the responsibility for species outside its traditional role in wildlife protection.
The minister has stated that there will be no new funding for this program. If this is the case, where will the funds come from to enact the proposed legislation? If jurisdiction over the wood bison or peregrine falcon is removed from the Yukon government, will the Department of the Environment be prepared to take responsibility and commit to the amount of money and personnel necessary to manage these species?
Yukon residents have seen the effects of federal government inaction in their management of habitat. We do not look forward to the prospect of the same level of effectiveness with the management of endangered species. In our opinion, endangered species will end up in a more precarious situation if the management of those species is left to the federal government.
The Yukon Fish and Game Association recommends that it is in the best interests of endangered species for those species to be managed by a local authority. If the federal minister is intent upon legislation that will remove the Yukon's authority to manage wildlife, the minister must make a commitment to provide the resources necessary to fully enact such legislation.
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Here are some miscellaneous concerns about COSEWIC. Subclause 14(2) outlines the composition of COSEWIC but indicates the members are not to be appointed as representatives of a particular region or interest group. There is a potential for no northern representation on COSEWIC. Given the application of this bill, and such a large percentage of it because of those of us in the north, this would be of great concern to us.
There is a possibility that COSEWIC will not consider the cultural importance of a species or traditional hunting practices related to that species when designation is based only on the best available information on the biological status of that species.
We also feel that subclause 13(1) should read ``the status of species considered at risk'', rather than that the species are not at risk until the designation has been made by COSEWIC.
The Yukon Fish and Game Association recommends that clause 14 clearly state the importance of maintaining a membership that is representative of all regions of Canada; that the designation of a wildlife species by COSEWIC be subject to approval by local interests. In the Yukon, this would be the Government of Yukon, the Yukon Fish and Wildlife Management Board, and renewable resource councils as brought into effect through the Yukon First Nations Land Claims Settlement Act.
In conclusion, the Yukon Fish and Game Association is concerned with the proposed legislation, Bill C-65, an act respecting the protection of wildlife species in Canada from extirpation or extinction. This act appears to cover a large percentage of Canada in its application. In reality, this is a purposeful misrepresentation. If we were to remove the Yukon and the Northwest Territories from this legislation, what percentage of Canada would truly be included in this bill? If we did not consider national parks, which already protect all wildlife, what percentage of Canada would then be included in the act? Unfortunately, this legislation will do little to address the real problems facing wildlife in Canada, and it will set in motion a spirit of confrontation rather than cooperation in endangered species protection.
The Yukon Fish and Game Association is tremendously concerned with the ability of the federal government to enforce the legislation, given the limited resources available. In this day and age of devolution of federal government and responsibility to the territory, this bill seeks to increase federal jurisdiction. It is our fear that endangered species in the Yukon, and in Canada as a whole, will not be well served by this legislation, as they are currently.
The Yukon Fish and Game Association strongly recommends to the Standing Committee on Environment and Sustainable Development that it adopt the recommendations contained herein.
Thank you for the opportunity to make the presentation, Mr. Chairman. I'm sure we'll have lots of good questions both ways afterwards.
The Chairman: Yes. I also want to thank you for your presentation because it contains a number of interesting points that we will pay careful attention to.
I am not so sure on page 7 whether it is a purposeful misrepresentation that describes what has gone on so far. Frankly, I am a bit disappointed that you would see the picture in that manner, because I don't think there is any ill intention on anybody's part. The fact that we come here before you, or we meet here in Vancouver, is certainly intended to improve the quality of what is being produced rather than trying to get away with murder, so to say.
Mr. Tait: And we appreciate that this is the process that is involved. But we also appreciate the percentages that were there under the legislative proposal in 1995 and how, since that time, the application has changed to give the numbers it now boasts in the summary. That is the point. We're not suggesting that you in particular are trying to pull the wool over our eyes, but we sometimes feel that someone out there is.
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The Chairman: It may be changes in policy rather than the presentation, but I'm glad you have clarified it.
I also wish to apologize to you and Mr. Smith and Grand Chief Adamson for the frequent activities here at the head table while you were presenting your briefs, only to explain that the consultations that took place were triggered by the substance of your representation in order to understand better what particular issue you were advancing and to understand better your perspective. It was certainly not intended to reflect any lack of attention to what you were saying. On the contrary, it was because of what you were saying that we were having frequent consultations here at the head table. You can be assured that I have already told the Grand Chief and Mr. Smith that we will take all the points you have made into very serious account and try to make this consultation as meaningful as possible.
We will give the floor to Bob Van Dijken, the director of the Yukon Conservation Society. Could you compress your statement into 15 minutes, please.
Mr. Bob Van Dijken (Director, Yukon Conservation Society): I don't believe I'll have any problem doing that.
The Chairman: Please, go ahead.
Mr. Van Dijken: I also have a number of copies of our presentation.
The Chairman: That would be very helpful.
Mr. Van Dijken: Thank you, Mr. Chair and members of the committee, for giving us this opportunity to present our beliefs, concerns, and views on Bill C-65. I will give a brief introduction and then get into the substance of our presentation.
I'm presenting today on behalf of the Yukon Conservation Society, an organization formed in Yukon in 1968. The society's purpose, under our constitution, is to encourage the conservation of Yukon ecosystems and to promote the scientific, educational, recreational, and aesthetic of Yukon's wildlife and wilderness. I also note that we are a supporting organization of the work of the Endangered Species Coalition, which has been working in Ottawa and throughout the nation in terms of the development of endangered species legislation.
The Yukon Conservation Society supports the development of strong national endangered species legislation. Our goals for an endangered species act parallel closely the principles, values, and goals contained in the preamble to Bill C-65. We have attempted to judge the strengths and weaknesses of the legislation in achieving these goals.
The national accord for the protection of species at risk accepts the principle that species do not recognize jurisdictional boundaries. To ensure protection of endangered species, it is necessary that legislation apply to transboundary situations. It would be tragic if political disagreement delayed the implementation of strong proactive legislation or diluted its effectiveness.
I'll go on to specifics.
In terms of application, YCS supports the notion that this legislation should be a national framework, not a national patchwork. However, the exemption contained in subclause 3(2) prevents the development of a national framework. The national accord may provide a mechanism to allow this to happen, but until all parties formally sign the accord and enact the necessary regulatory framework, we are dealing with patchwork protection.
At minimum, federal legislation must ensure that effective recovery plans can be developed and implemented for transboundary...and we define this as provincial, territorial, federal, as well as international wildlife populations. Our organization recognizes and supports the role of the Yukon Fish and Wildlife Management Board and believes legislation must recognize this role.
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The umbrella final agreement states in section 16.7.1:
- A Fish and Wildlife Management Board shall be established as the primary instrument of Fish
and Wildlife management in the Yukon.
To sum up our recommendations, the federal legislation should apply to all transboundary species and consultation with wildlife management boards should be mandatory.
In hearing the views of the others at this table on whether or not the legislation should apply territorially, we feel there's a much greater role for the legislation provincially as well. We're almost looking at the flip side of the coin in terms of whether the territories should be treated the same way as the provinces. We would prefer to see it work the other way around: the provinces should be treated more like the territories are in ensuring that trans-boundary issues and trans-provincial issues are dealt with. We recognize that is a political hornets' nest and it doesn't seem to be the way -
The Chairman: No, no, it's not. Excuse me for interrupting. It's not a political hornets' nest; it is a constitutional somersault.
Some hon. members: Oh, oh!
Mr. Van Dijken: In terms of listing wildlife species at risk, the Yukon Conservation Society is concerned that the final decision on a listing of species is of a discretionary political nature rather than a decision based on scientific, local, and traditional knowledge. We are concerned that wildlife protection may take a back seat to political expediency.
Our recommendations are that you severely limit the minister's discretion to turn down any COSEWIC recommendation to list a species and require written reasons for decisions in any case where the minister does not list a species as recommended by COSEWIC.
A number of people at the table this morning have spoken on how critical habitat protection is in the protection of species at risk. It is key. The legislation must protect all critical habitat rather than just the residence of an individual of a listed endangered or threatened species. Currently there is no habitat protection ability under the Yukon Wildlife Act.
There have been conflicting messages from the territorial government on renewable resources. The former territorial Minister of Renewable Resources stated in the legislature in April 1996:
- We do not have the ability to enact legislation on most areas of the Yukon, because we only own
something in the order of two percent of the whole territory. We are responsible for the wildlife,
but we are not responsible for the habitat.
Until there is some certainty and territorial legislation is passed, federal legislation must be relied on.
The Territorial Lands Act, which is federal legislation, states that the Governor in Council may, where he deems it necessary for the protection of the ecological balance or physical characteristics of any area in the Yukon Territory or the Northwest Territories, set apart and appropriate any territorial lands in that area as a land management zone and may make regulations respecting the protection, control, and use of the surface of the land in that land management zone. So there does appear to be a mechanism currently in place federally to allow habitat protection.
Our recommendation is that the legislation offer protection to all critical habitat identified under status reports for species at risk.
The next topic is recovery plans. The national accord for the protection of species at risk states that legislation and programs shall be established that will provide for the development of recovery plans that address identified threats to species and their habitat and implement recovery plans in a timely manner. Yet Bill C-65 as written does not require the minister to ensure that recovery plans be implemented, nor does it specify a timeframe for the recovery plans to begin.
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The proposed act provides timelines for the examination of applications in subclauses 19.(3) and 23.(2), decisions on listing, subclause 21.(1), status report and final decision on designation, subclause 25, and notice of response and a number of other clauses. It should also specify a timeframe for the start of the implementation of recovery plans.
Likewise, the act requires that the responsible minister must prepare a recovery plan. It should also make the minister responsible for ensuring that the recovery plan is implemented.
Again, our recommendations: make the minister responsible for ensuring recovery plans are implemented; legislate statutory timeframes mandating the beginning of implementation of recovery plans.
In terms of review and screening, this legislation should be proactive in its approach rather than reactive. In order to do this, projects that have the potential to affect species at risk must be identified and reviewed before damage is done.
The status reports COSEWIC prepares on species at risk are required to identify existing and potential threats to the species and its critical habitat and evaluate how serious these threats are - paragraph 20(2)(c). Proposed development or disturbance of habitat identified in status reports for listed species must be screened for impact, and measures contained in recovery plans needed to reduce or eliminate the threats to the survival of the species must be implemented.
Any project with a potential to impact species at risk must receive a full environmental assessment before any disturbance takes place, and measures necessary for the protection of species at risk must be included in any permits issued.
In conclusion, we believe that legislation for the protection of endangered species is critical and long overdue. We support the development and passage of this legislation in a timely manner, and have suggested a number of changes we believe will make the legislation more effective.
Cooperation between jurisdictions is essential to protect wildlife species at risk, and it is necessary that there be a national framework in place to ensure that recovery plans are effective in dealing with transboundary populations.
I have a very quick comment in terms of some of the discussion we've heard today on consultation.
In the north there is a frustration at times with the level of consultation. I know in the past year or so there has been continued frustration voiced on consultation, for example on three other bills I'm aware of: Bill C-68, the gun control legislation; Bill C-6, the act to change the quartz and placer acts in the Yukon; and just before Christmas fisheries came up about Bill C-62, which is the proposed new fisheries act. In each case it seems that consultation has not been done in the spirit of the first nations umbrella final agreement, and also the legislative mandate. In all cases it did seem there's almost a systemic problem in Ottawa in grasping what the legislation actually means.
We're urging everyone, this committee included, to perhaps look at that concern not just in terms of this legislation but as a wider systemic concern that needs to be dealt with, or we'll keep tripping over this every time a consultation like this takes place on federal legislation. There has to be time taken to sit down and determine how to do this right so we don't constantly trip over concerns at second reading or concerns that stem from consultation not taking place a lot earlier.
One other thing I'd like to sort of have on the record is the definition of wildlife. Bill C-65 defines wildlife species as ``a species, subspecies or geographically distinct population of animal, plant or other organism that is wild by nature''. The Yukon Wildlife Act defines wildlife as ``a verterbrate animal of any species or type that is wild by nature''. Again going back to the Yukon act, it talks about management of game. So if we look at what's in place in the Yukon right now, there's the opportunity for I suppose some protection of endangered species, but it's fairly limited if we look at the traditional role.
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What we have is a system that has looked mainly at game animals, animals for harvest. We have not looked that carefully in the Yukon at plants, at amphibians, at some of the other aspects of the ecosystem.
So we have a system in place. Things are changing. But our belief is that the Yukon looks good in terms of not having endangered species, having good healthy populations in general. That is the case. But I think if we dig below the surface, if we start doing more research, start recognizing some of the plant species, some of the species that are unique species or at the limits of their extent, I think we will find as time goes on and more research is done that there is an increasing need and an increasing recognition that endangered species and species protection is an issue that does have a place in the Yukon and will have to be looked at further.
Thank you for giving me this time.
The Chairman: Thank you, Mr. Van Dijken.
Perhaps you may clarify for the committee what you meant, in describing a systemic problem in Ottawa, when you said that there is some pattern of not being able to grasp what the legislation means. Are you saying that the officials in Ottawa have some difficulties in understanding the impacts of the proposed legislation, or that they failed to conduct appropriate consultations?
Mr. Van Dijken: I think it's more failed to conduct appropriate consultations. I think the umbrella final agreement and the regime it establishes is not fully grasped. And Canada as a whole is such a large place and the Yukon is such a little corner that I think that at times in the past it was taken for granted and the recognition in some places is not there. The rules have changed and what has been done in the past and the level of effort and the level of attention necessary have changed in order of magnitude. There is another level of government.
The Chairman: Thank you.
Madam Jennings.
Mrs. Jennings (Mission - Coquitlam): Thanks, Mr. Chair.
First of all, I'd like to say welcome to all of the presenters this morning. I did enjoy very much listening to your presentations. I can hear very seriously the strong feelings you all have for the Yukon and the lands you've represented all these years. Please be assured that the members of this committee also hear that and feel that. We know the apprehensions. It's coming through quite loud and strong.
I'm going to state my four questions, and then, if you will, each of you can answer them.
First of all, I'm concerned, Grand Chief Adamson, that you are concerned about the consultative process. I understood, listening over the last few days and in my time in Ottawa.... I have not always been on the environment committee, but I understood that there have been three years of consultation and that there has been adequate opportunity for everyone to be involved. Yet your remark to the chair that consultation has not occurred in the Yukon was I thought very serious. Grand Chief, is it the fact that it's not in the Yukon that it took place, or is it the fact that you felt that the consultative process has not been good?
Also, I would like another question answered from you, and that is how do the Yukon first nations people feel about hunting and fishing endangered species?
Mike, I understand also that the consultation process has been an issue with the Yukon Fish and Wildlife Management Board. I can understand that. Also, I noticed on your declaration that it talked about the primary goal of ensuring a sustainable harvest and its proper utilization, on page 2. At the same time, you state that the agreement ensures that a shared sustainable fish and wildlife harvest is available to others. These statements are very laudable, but will they protect the endangered species? On page 6 you have ``the protection of all endangered species across Canada consistent with aboriginal land claims legislation''. How will that impact on endangered species? How will endangered species fall in, being consistent with aboriginal land claims legislation? Will that make a difference?
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Russ, I certainly have nothing but recommendation for the 50 years your organization has been working with.... I also have been up in the Yukon and worked at Lake Bennett and been up in Whitehorse when I was younger, and I thoroughly enjoyed it. And I've long been an advocate that those stakeholders that are involved in any issue must be involved after the issue is through legislation. I sense the apprehension. I want to really let you know that I'm a strong believer that you must continue, all of you, in any legislation that's passed and make sure the impact is felt, because we only learn from those with the experience.
I'm wondering, do you not see a possibility in the national legislation...? I'm sure you see a need for a national standard, but do you not see a possibility where a board can be set up after, or it could be slightly changed, so that there is room for the people on it, and that it could be ongoing, so that indeed this proactiveness you've already done with the falcon and with the two species you're working with could continue? Because I'm sure the bison and the falcon may not have been with us in the numbers they are today without your intervention.
And Bob, lastly, on transboundary, I see you wanting a national legislative process. And that's right; we have to have something that covers all of Canada. But you said something that made me wonder. When you're talking about the provinces, do you not see that we should, in B.C., even though we only have limited federal land base here, also have endangered species legislation? I wasn't quite clear, because you said you thought the provinces should be similar to the territories. Maybe I misread your concern.
I will listen to the answers from all of you. Thank you.
The Chairman: Would you like to go in the same order as you made presentation, possibly short answers? Please, go ahead.
Grand Chief Adamson: Mrs. Jennings, thank you very much for your questions. There's no way these answers could possibly be short.
With regard to consultation, it may well be there was an intent to consult. The Government of Canada, as well as the Government of the Yukon and the Council of Yukon First Nations, and subsequent to that, specific Yukon first nations, signed treaty agreements with each other.
Perhaps I may be giving much more significance to the Canadian Constitution than I ought to be, or perhaps I misunderstand the Canadian parliamentary system, but when a minister of the crown signs on behalf of the crown, that commitment ought to be honoured. On May 29, 1993, such a treaty was signed among Yukon first nations and the Government of Canada on the part of the crown, which states, among other things, that the agreement was signed to do a number of things, which include that the parties to the umbrella final agreement wish to achieve certainty with respect to the ownership and use of lands and other resources of the Yukon.
More significantly, the parties to the umbrella final agreement wish to achieve certainty with respect to their relationships with each other. Those relationships are defined in a number of ways. ``Consultation'' is a defined term in a legal document that has been enacted in Canadian law by your very own Parliament. But ``consultation'' as defined in this document, signed on the part of Canada by your minister, has not been observed. That's why we believe consultation has not occurred.
With regard to how aboriginal people feel about hunting endangered species, we don't like it - nor do we like being an endangered species. There has never been a time that Yukon first nations, individuals or governments, have said that we support the hunting of endangered species. Don't deliberately misunderstand our position. We don't like it. In fact, the agreements we've negotiated with the other governments in Yukon and Canada are very strict in how we wish to protect wildlife and their habitats - very strict.
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We've been harvesting wildlife for longer than anybody else in the Yukon and we have not endangered one species yet. It was with the influx of the non-aboriginal settlers and their actions on the land and environment, the wildlife and the habitat, that endangered many species.
Don't ever believe that a Yukon first nation member is comfortable in hunting endangered species. Don't ever suggest it, because I won't allow that kind of comment to be made.
Thank you very much.
The Chairman: Thank you.
Mr. Smith.
Mr. Smith: Thank you very much for the opportunity to address your questions.
In dealing with consultation, we are relying on the legal system to enforce this, and really we should be relying on each other to promote a more cooperative effort. I believe that, in many respects, when Ottawa consults with the Yukon, they simply call their people in the Yukon. They call their managers. That's how they consult. They don't talk to people at our level. This has been our first opportunity to make a representation to you, and we do appreciate that.
We support the intent of the bill, and we will work with you on this.
With respect to the question of how the board would be involved in endangered species and whether or not we would allow someone to hunt the last moose, I think you fail to understand that what we have in place is an integrated management system. While it's not written in the act, it is very clear that there is a lot of respect for the land and for wildlife. When we deal with our integrated management system, it involves everybody; it involves all governments, all interest groups. When we deal with wildlife, we will make sure that none of the wildlife will be put on the list. For a long time we have looked at game, and we will make sure it won't even be on the threatened list, because there are mechanisms in place. When we deal with my friends here on management plans, we do respect wildlife. We're now encouraging first nations to become involved in wildlife management planning by collecting data, critical data, to ensure that in the future there will always be game for future generations.
Mrs. Jennings: Thank you, Mike.
I just want to make one comment. What you must understand about legislators and those who draw up the bill...it is the legal word in the courts that is always interpreted and acted upon. So we must be very careful that the legal word leaves no room for doubt. As we have watched the crimes that have taken place over the centuries...that's what has been used in settlements in courts. We must be so clear that we understand that legal word. It's the interpretation, and you can't have an interpretation that is correct unless you have the correct word to begin with.
Thank you.
The Chairman: Thank you, Mrs. Jennings.
Let's hear from the others. Mr. Tait, please.
Mr. Tait: I thank you for your question.
First, I would like to reiterate what Shirley has said, and that goes beyond first nations. I know how entrenched it is in first nations beliefs, and I can tell you as someone who has lived there all his life how important the status of wildlife is to me and a lot of other Yukoners.
We are not out to destroy endangered species; we are out to protect endangered species, and that remains paramount. It comes back to having the Yukon have the authority rather than having to ask for the authority back from Ottawa. We were given that authority in 1900 and we feel that we have been able to deal with that effectively. This would mean that we have to ask Big Brother in Ottawa for the right to wildlife management again, which we feel is not necessary.
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Under this bill would we still be able to protect things like the...? That's where a species, as Bob talked about, being, under the Yukon Wildlife Act, vertebrates and not species that aren't game animals. So the peregrine falcon is not a game animal. The Yukon has spent a lot of money protecting and re-establishing the peregrine falcon.
It's our fear that programs like that wouldn't take place because the money would not be there from the federal government to do that. Would the federal government be willing to commit the dollars necessary to do programs like that? I don't think so. The federal minister has already stated there won't be any new money for this program. How can can it therefore have money available to do programs for recovery?
Just to re-emphasize, no, we don't have a problem with endangered species in the Yukon. Whether the COSEWIC list as it is now stated is going to be an appendage to this act or they start all over again from scratch, I don't know. I guess that's something this committee would have to add.
I see both the grizzly bear and wolverine as vulnerable, but in the Yukon the grizzly bear is not vulnerable. There are close to 6,000 grizzly bears in the Yukon. That's one grizzly bear for every five people. It is not vulnerable. The wolverine is not vulnerable. So where they draw these species from.... They may be vulnerable in Ontario, and they are vulnerable in Alberta, where this act has very little application to protect them.
So that's where both the reality and the big picture come in.
The Chairman: Thank you. Mr. Van Dijken.
Mr. Van Dijken: In terms of provincial legislation, yes, we believe there should be strong, effective provincial legislation. Perhaps the national accord can accomplish that. I think the concern we're expressing is for equivalency of provincial legislation.
If you have a transboundary population, for example, and one province takes its responsibilities very seriously and has strong, effective legislation in place, but the other province, which also has a role to play in protecting that species, perhaps has inadequate legislation, there has to be some method of ensuring that legislation is strong and effective.
As well, in coordination, for example, of recovery plans for transboundary populations, where if you have two jurisdictions, each with their own act, and the acts don't enable a strong meshing and a strong overall plan that looks at the species and its habitat and its range rather than two provincial boundaries, there's also the need for that coordination and that ability to deal with recovery plans on a transboundary basis.
That was the point I was trying to make.
The Chairman: Thank you. Mr. Knutson.
Mr. Knutson: Thanks very much, Mr. Chair.
I just want to say, as a preamble, that I think what we're all saying is that we agree on conservation and protecting endangered species. From the Ottawa perspective we also acknowledge that solutions have to be devised and implemented locally.
Chief Adamson, if I were to go back to Ottawa and ask the bureaucrats what consultation, in their minds, has occurred, what do you think they're likely to tell me?
Grand Chief Adamson: I don't speak on behalf of the Government of Canada. Perhaps you have to put those questions directly to those members.
Mr. Knutson: Have they done anything?
Grand Chief Adamson: That's a question you'll have to put to the members. I don't believe consultation, as defined under the umbrella final agreement, has occurred.
Mr. Knutson: So there's been no contact. They didn't send you notice and so on.
I'm just trying to get a sense of.... When we go back to Ottawa presumably they'll tell us something.
Grand Chief Adamson: I understand your question now. Perhaps you'll have to be a little more focused in your questions.
Has consultation, as defined in the umbrella final agreement, occurred? There may very well have been some letters. There may very well have been drafts of the proposed legislation mailed out. But I'm insisting that consultation, as part of the legal and legislative obligation of Canada, should have occurred, and I'm saying in that context it has not.
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Mr. Knutson: Moving on then, the letter you read into the record highlighted the wording in subclause 2(2):
- (2) For greater certainty, nothing in this Act is to be construed so as to abrogate or derogate from
any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of
the Constitution Act 1982.
Grand Chief Adamson: I think you have to be very careful to understand that when we're dealing with endangered species and the concerns of Yukon first nations, we're dealing with a number of issues that are eroding our cultural lifestyle, our livelihood. This is one of very many federal pieces of legislation that is doing a great deal of damage to us.
I think Yukon first nations are best able to say for themselves how they want any act to be drafted and implemented. That's why there are provisions within the agreement that we've signed with Canada and Yukon that specify that process.
What it tends to answer in detail, I would suggest, is that had the Yukon first nations had the opportunity of consultation, you would have heard those specifics. I think there needs to be some very careful thought for what is being imposed upon Yukon first nations yet again. It's not a single solitary piece of legislation that we're opposed to. We're fighting to maintain our cultural identity, our cultural lifestyle, our cultural livelihood, and to protect the integrity of the treaties we have signed with the Government of Canada on behalf of the crown.
Mr. Knutson: I mentioned subclause 2(2), which says we're going to respect the treaties.
Under subclause 3(5), the bill says:
- (5) Before making the agreement, the Minister must consult any wildlife management board
established under aboriginal land claims legislation if the Minister considers that the order will
directly affect the board.
Grand Chief Adamson: Let me attempt to give you some thoughts. If you wanted to address the issues of the Yukon first nations, Yukon should have been excluded from this legislation. The provisions of the umbrella final agreement and the subsequent land claims and self-government agreements ought to take its place.
Mr. Knutson: So your argument is that the federal Parliament of Canada has no business passing any endangered species legislation that covers the Yukon.
Grand Chief Adamson: At this point, yes.
Mr. Knutson: The submissions of Mr. Smith on behalf of the management board...in a sense he reports in part to you.
You're saying no and he's nodding his head.
Grand Chief Adamson: The creation of the board is through the umbrella final agreement. Yukon first nations, through the agreements we've negotiated with Canada and Yukon, have brought authority and jurisdiction back to Yukon, and we've shared it with other Yukoners. That's our commitment to all of Yukon, the people and the environment. We created the board in the umbrella final agreement, but it's independent of influence from ourselves as a government.
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Mr. Knutson: I'd point out that in the latter part of his submission he seems to want to strengthen the bill and toughen it up.
I'd also point out that apparently the Yukon Minister of Renewable Resources recently confirmed in the Yukon legislature that the Yukon government lacks authority over wildlife habitat except on territorial lands. In response to a question about what the government would do to protect caribou habitat, the minister stated:
- We do not have the ability to enact legislation on most areas of the Yukon, because we only own
something in the order of two percent of the whole territory. We are responsible for the wildlife,
but we are not responsible for the habitat.
On one hand he's saying we're responsible for game and wildlife, but we don't have the jurisdiction to protect habitat. We're all saying we agree on conservation.
If I understand your point, Chief Adamson, you're saying the federal government should stay out of it entirely as far as the aboriginal lands are concerned. Maybe you can help me round out some of these what seem to be conflicting points.
Grand Chief Adamson: The jurisdiction on retained lands rests in the hands of the first nation government. There's shared jurisdiction off settlement lands.
It should be noted that the negotiations of lands and resources are still occurring in Yukon, between Yukon first nations and Canada. Those negotiations are continuing. It's a long outstanding legal obligation on the part of the crown to negotiate certainty over lands and resources with the first nations.
Mr. Knutson: All right. I'll pass to the next questioner.
The Chairman: Thank you. Mr. Adams, please.
Mr. Adams (Peterborough): Thank you, Mr. Chair.
Grand Chief, I'd like to pick up where Gar left off. I was on the committee that sat all night on the agreement in Ottawa. By the way, it was one of the more interesting and exciting times in a normally very dull existence on Parliament Hill. I had kind of thought it was at least the end of a stage, but I see from your presentation here, and you just mentioned to Gar, that the negotiations are still going on. Can you summarize that? What exactly did we do in Ottawa?
I believe there are 14 first nations in the Yukon. Did the legislation we dealt with only deal with the four? Does your council represent the ones who are in or the ones who are out? Can you very briefly bring me up to date on that?
Grand Chief Adamson: I'll attempt to, but you probably spent more time in committee than I did.
The umbrella final agreement is the overall agreement on which Yukon first nations base their negotiations. When the legislation was enacted in Parliament, it gave effect to the subsequent four Yukon first nations agreements. At that point it was understood - and it's contained within the legislation - that the agreements of the ten first nations that were still negotiating would be appended to the existing legislation.
So legislation was passed for the umbrella final agreement as well as companion legislation for self-government agreements, the implementation act, and so forth to give effect to what we needed to do.
At this point the four have their agreements in effect right now, three are going through the ratification process, and the remaining first nations are in active negotiations with the crown at this point.
Mr. Adams: So does the council represent all 14?
Grand Chief Adamson: The Council of Yukon First Nations represents 11 of the 14 Yukon first nations in the Yukon. What occurred in the past summer is those first nations with legislative authority - and it's been recognized by Canada and agreed to by Canada by way of legislation and by way of protection of the Constitution - have shared their law-making jurisdictions with the Council of Yukon First Nations. So in fact what has occurred is that Yukon first nations have created their central government institution, which is the Council of Yukon First Nations.
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Mr. Adams: Thank you very much.
By the way, we have met with other first nations groups, people from Nunavut, some territorial people, and so on. I was very struck by the argument about the scale of the lands involved in the territories. We had quite specific recommendations, for example, on COSEWIC, and I would certainly support first nations representation on COSEWIC. I would certainly support some phrasing that recognized the particular importance of the territories, not just in area, but as a sort of area where we can prevent things happening that have already happened in the south.
I would also support the idea that the definition of science, which is mentioned, and the importance of science in COSEWIC be such that traditional ecological knowledge or some such praise be included - just so you know that.
But going back to what my colleague said about these sections in the existing legislation - and I'd be grateful if some of you would consider responding to this either now or later. As he said, and going back to your remark, under subclause 3(5), ``Consultation'', it says:
- (5) Before making the agreement, the Minister must consult any wildlife management board
established under aboriginal land claims
- By the way, you may need something special in there for territories, along the lines that were
discussed.
- do not apply to persons who are engaging in
Paragraph 39(a), which deals with recovery plans, says:
- 39. The recovery plan must be prepared in consultation with
- (a) any wildlife management board that is established under aboriginal land claims legislation
and is affected by the plan;
- I think if I took the time there would be others.
Grand Chief Adamson: Thank you very much for those comments.
I guess I should say that we weren't involved in any of the discussions that have occurred between the Government of Yukon and the Government of Canada in the development of accords. There was no Yukon involvement at that point. There have been some initial discussions between myself and the territorial Minister of Renewable Resources at this point, and I'm assured by that minister that we do have his support with regard to our position that the agreements we've signed should take precedence.
I also want to suggest very strongly that your comments are no different from those comments we're making to you, that we've signed treaties that are recognized and protected by the Constitution of Canada that have specific wording with regard to fish and wildlife. The objectives are very straightforward: to ensure the conservation and the management of all fish and wildlife resources in their habitat. It goes on, but it goes beyond that and guarantees the rights of the Yukon Indian people to harvest and the rights of Yukon first nations to manage renewable resources on settlement land. It goes on to identify the integration of the relevant knowledge and experience both of Yukon Indian people and of the scientific communities in order to achieve conservation.
So these are not pieces of legislation that have evolved over one or two years. These agreements have been negotiated over a quarter of a century. We have been negotiating provisions of these agreements for 30 years. We've put an incredible amount of energy into developing these agreements. All we want to do is protect those agreements. All we want to do is protect and enhance the lifestyles of Yukon first nations, as individuals and as government.
.1325
So, yes, there probably is room for integration of the languages of the two pieces of legislation, and that's what we expect Canada to do. In fact, we expect it because consultation is a defined term in this agreement; hence the definition is contained in other federal legislation.
Mr. Adams: Again, not to be argumentative, but there are sections in this legislation - and I understand your point about the nature of the consultation - where consultation is specifically mentioned. I would urge you that if you can focus on that....
I was involved with the Sahtu claim. Conservation is always very high in first nations. I understand that. But my sense of this legislation is that conservation is an underlying concept in this, just as it is in your agreement.
Mr. Tait: There are a couple of points we'd like to clarify. First, our situation is different from the Council of Yukon First Nations in that the act is dealing with the process of the act itself and the consultation involves both that and the legality of it.
When you refer to subclause 3(5) in the agreement, that before making the agreement the minister must consult, the process of the agreement it's referring to in subclause 3(5) is for the Yukon to be able to negotiate back the right to look after a specific endangered species.
Let's take the bison, for example. If this legislation goes through, Ottawa would have authority over bison. The only way we in the Yukon could get the authority to manage bison again is to then negotiate that back and be granted that from Ottawa. In that process there then has to be consultation, which you're referring to in subclause 3(5).
We're saying that rather than have to negotiate that back, give us both the authority granted to the provinces and the way it was set up initially in the accord, where, first of all, we have an opportunity to have compatible legislation. If we don't do it, then have Ottawa come in and say, here, you have to do that. But at least grant the Yukon the opportunity to do that initially.
Second, I'm not certain that Mr. Knutson is comfortable with the relationship between the Fish and Wildlife Management Board and government of Yukon renewable resource councils. He looked as though he had a faraway look in his eyes when we were talking about not being clear about how that system works and the relationship between wildlife management and habitat management.
Mr. Knutson: I don't have the floor -
Mr. Tait: I wanted to refer back to that, not to get you off the track.
Mr. Knutson: - but my point is that it's a new concept for me. My general point is that as I read the wording of the act, the drafter in good faith drafted it in such a way that it genuinely respects management boards, generally respects treaties and aboriginal lands and -
Mr. Tait: But you understand the distinction between who will have the authority and that we'll have to earn back the right to manage those rather than us having the opportunity to manage those species, and if we can't do that, then Ottawa should step in. But that's what makes the legislation so different for the territories; we have to earn back the right to manage the wildlife again, which is something we don't want to do.
Mr. Adams: Mr. Chair, I would again urge that all the presenters - and we really appreciate the detail you've given us - look at the stuff that's in there. For example, in terms of the territories being distinct from the first nations, subclause 3(4) says:
- Before recommending the order to the Governor in Council, the Minister and the minister of the
territorial government who is responsible for wildlife species must agree in writing that an
equivalent provision is in force by or under the laws of the territory.
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Mr. Tait: That's a clarification you will certainly get from us, and I know you will be getting it from the Government of Yukon. The crux of our difficulty with it is the changes that have occurred to the act since the legislative proposal. There were changes in there that significantly put a twist on who has that authority, whether we earn it back or whether we have an opportunity to....
So yes, we'll definitely submit that.
Mr. Adams: You mention the changes. There have been three years of consultation. I don't want to engage in the same argument, but there have been three years, and this text has come from two task forces and the current round of discussions. You heard me. There are paragraphs in here that, with often quite simple changes, would cover your arguments and, by the way, the arguments of the Yukon first nations, I'd like to think.
Thank you, Mr. Chair.
The Chairman: Thank you, Mr. Adams.
We have now Madam Kraft Sloan, Mr. Steckle, and then we'll wrap it up. Madam Kraft Sloan.
Mrs. Kraft Sloan (York - Simcoe): Thank you very much.
I think Mr. Adams and I shared the same breakfast, because we are now regurgitating the same kinds of arguments.
Some hon. members: Oh, oh!
Mrs. Kraft Sloan: Anyway, we can strike the final comment from the record.
A voice: Shame on you.
Mrs. Kraft Sloan: Grand Chief, I think it's because of the hard work and the amount of energy you have been putting into these negotiations over the past 25 years that we have seen certain clauses in this legislation. While they may not go as far as you would like them to go, perhaps a closer examination of those and suggested amendments to strengthen them from your perspective would be very useful for this committee. But if this legislation had come out 10 or 15 years ago, I don't think you would see those same clauses Mr. Adams was referring to.
I wanted to specifically talk about the point that was brought up on the bison recovery program, because as Mr. Adams has so ably pointed out, paragraph 36(1)(b) in the bill gives an exemption. You said you would be committing some kind of illegal act according to the legislation. I don't understand why it would be illegal. If you were going to kill some bison for the purposes of conservation and as part of the co-management board practices, according to the act you would have an exemption and there would be no problem with that.
Maybe you could respond to that. If you feel there's another wording, as Mr. Adams has suggested, it would be very helpful to hear it.
Mr. Tait: Again, we would have to prove to Ottawa that we know what is best for that species and then to do the management for that particular species.
I guess the broader question is how would that process take place? Under the act, does it mean a member from a renewable resources council goes out and disposes of a couple of bison? Is it done through a permit draw? What is the process involved? And again, it goes back to us having to justify to Ottawa the need for that, rather than having our own authority.
Mrs. Kraft Sloan: But the need has already been justified in the act itself. The act has determined the exemption. The act has said that the work you're doing is important work and therefore you have an exemption to the prohibition. You don't have to prove anything here.
The kind of work you've been doing has already been recognized under paragraph 36(1)(b), which says:
- activities in accordance with regulatory or conservation measures for wildlife species under an
aboriginal treaty, land claims agreement, self-government agreement or co-management
agreement that deals with wildlife species.
- - Exactly what you were talking about would be exempted from the prohibition.
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Grand Chief Adamson: I understand your point and I thank you very much for attempting to focus on those clauses of the proposed legislation. Where we do have some difficulty is.... I don't want to get into any more debate on the consultation or lack thereof, but we do need to assess and determine ourselves, and we'll probably only be able to do that through some legal interpretation with our own counsel, if in fact this provides us with the required protection.
Clearly those first nations on whose behalf I've read a letter into the record - the Champagne and Aishihik First Nations, the First Nation of Na-cho N'y'ak Dun, the Teslin Tlingit Council and the Vuntut Gwitchin First Nation - feel the proposed legislation is breaching their agreements. I can only reiterate that they have made it very clear to the committee that it is their intention to challenge the constitutional validity of the proposed act if the process continues in the manner it has been going.
Clearly at this point they don't believe their interests or their agreements are being addressed or that the application of prohibitions or the exemptions are sufficient in this case.
Mrs. Kraft Sloan: I also support what Mr. Adams has said regarding COSEWIC in terms of strengthening the language around representation from the north and from first nations communities and other aboriginal groups.
I would like to point out, however, that while this act does lay out a governing body for COSEWIC, the current structure of COSEWIC, with the 28-odd scientists, will still remain in effect. So experts in different species areas will continue to do their work as well as there being an integration of traditional ecological knowledge. That's part of the terms of reference for COSEWIC.
If there are ways we can strengthen that and acknowledge within the bill itself the contribution of the field of traditional ecological knowledge, I would certainly welcome those kinds of comments.
Thank you.
Mr. Tait: We have a specific concern about the species that are listed by COSEWIC presently and the rationale for doing so. Given our context, there's no justification for listing those two species I mentioned - the grizzly bear and the wolverine - as vulnerable. That's where our concerns stem from. If they're placed on that list without justification now, how would that process change under this act?
Mrs. Kraft Sloan: Under the act itself we talk about subspecies and geographically distinct species, and there has been some recommendation around genetically distinct as well. I know a member of our committee, Mr. Anawak, has often spoken of his concern about different species that in the south are listed, but in the north it's not the same kind of problem, as in the situation you have identified.
It's a point we have to pursue a little further to understand how the definition of ``geographically distinct'' would work and operate. I'm not entirely clearly myself on that, but it's an important difference.
Also, as the listing process currently operates as stated in the bill, it is the Governor in Council who will take the advice of COSEWIC to determine what will be listed. So it's not an automatic listing from COSEWIC as it currently stands. We have to think about the differences between the north and the south and different geographic areas of the country.
Mr. Tait: Right, and that's why we're saying the people involved there have to be close to the issue.
Mrs. Kraft Sloan: Oh, absolutely.
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Mr. Tait: That happens all the time in the north. They ask you where you're from, and it's, oh, you're from the Northwest Territories. People don't have an idea geographically where we are. You see that all the time, whether it's The Globe and Mail talking about our election results or whether it's on the endangered species list.
Mrs. Kraft Sloan: I have had the pleasure of being in the Northwest Territories a couple of times and would love the opportunity to go to the Yukon.
Thank you.
Ms Ford: I'd like to make one point on COSEWIC.
When you say ``representation from the north on COSEWIC'', one of the questions I would have is that, considering the large land mass that would be involved under this legislation in the north, would the percentage of people on COSEWIC be reflective of the north?
Mrs. Kraft Sloan: What I'd said was that I'm supportive of what Mr. Adams had said - that is, we should take a look at ensuring a better representation from the north. How that actually filters out, I don't know. I don't know what kind of numbers we're talking about, because the committee hasn't discussed any amendments for that clause. We may decide that we have to increase the numbers of the members on COSEWIC.
All of those questions are open for discussion, but I think it's an important consideration when we take a look at that clause for amendment to ensure that there is adequate representation.
If you have any suggestions, perhaps you want to give it to the committee for our consideration.
Ms Ford: Possibly a good start would be that human population is in the south but in the north it is the animal population and the land mass. That should be more reflected in the percentage. Because that's the percentage of land that this bill, if it goes through, will cover. Maybe that percentage should be reflected in COSEWIC. I don't know right now how many people from the north - I imagine there's quite a few already - are on COSEWIC.
Mrs. Kraft Sloan: Yes. Within the current structure of COSEWIC there would be representation.
The Chairman: Thank you. Mr. Steckle, please.
Mr. Steckle: To the presenters this morning, I too want to share my view of appreciation for coming and sharing your concerns.
I think it's fair to say that for this legislation to be successful there has to be cooperation and there has to be a spirit of us working together and understanding one another. It's quite understandable that when there are so many demographics and we're geographically many miles apart in terms of where we come from that our concerns would be somewhat different. Of course, whether we debate today and beyond on whether there's been proper dialogue and discussion going into this and prior to this point is a subject for another time.
I think it's important to understand, for the record, that it's going to be in the spirit of cooperation that we're going to make this bill work. It's not going to work simply being brought down from Ottawa. There has to be a cooperative spirit, because in effect the action is going to be on the ground, and that's where you're at, and where I'm at.
I think it was Russ who suggested that in the bison recovery about 80% of the funding came from the Yukon government. To me, not quite understanding the appropriations of moneys or where this money comes from in the first place.... You say $170,000 comes from external funding. It's my understanding that the federal government has contributed huge amounts of money towards caribou recovery, for the peregrine falcon. So that may be part of that $170,000 in terms of your peregrine and bison programs.
Would it be fair, for the record, for all of us to understand that a great portion of the 80% of the funding that came from the Yukon government, in some form, indirectly or directly, may have come from Ottawa originally? We know there's a sharing agreement. Where did that money come from? I know there's going to have to be a sharing of cost. We know that. We've done this, and we will continue to do so. But perhaps we should understand that some of this money, maybe indirectly, has come from Ottawa, and that we've shared perhaps in other programs, even though you specifically only mentioned two particular programs this morning.
Mr. Tait: It comes from the budget of the Government of Yukon. As you well know, a great percentage of the money comes from the federal government and a percentage comes from other revenue sources of the Government of Yukon. It has been their priority to designate that amount of funding to this program. Our fear is that this priority would not be there from the federal level for spending in that particular case.
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Mr. Steckle: Surely the commitments of the federal government would not change if this legislation were brought into effect. Our commitments to the Yukon government would continue.
Mr. Tait: They have been changing. They have become fewer, through transfer payments for the last ten years. To say that surely the commitments won't change...I don't know whether I would write that in stone. Given the potential for change in Ottawa, not knowing is not a good position.
Mr. Steckle: I think that's a fair question, but I think it's fair to say that transfers to other areas of Canada have also changed. The argument can't be made that you've been treated differently.
Grand Chief Adamson: I have to disagree with you on that point because of our involvement in the devolution of the individual jurisdictions. In almost all of the issues we've been dealing with thus far, Canada has put on the table a take-it-or-leave-it offer whereby Yukon would receive considerably fewer financial resources to cover the same jurisdictions Canada is covering at this point.
Mr. Steckle: That's all I have.
The Chairman: Mr. Tait.
Mr. Tait: I have a couple of general questions for Mr. Adams.
One would be to you, Mr. Chair. Do you know whether Audrey McLaughlin was given the opportunity to be on this committee or whether she was asked to be involved with this committee, as the only MP that represents all of the Yukon?
The Chairman: I think that is a question Mr. Taylor could answer better than I can.
Mr. Taylor: Audrey is aware of everything that is going on at this committee. I'm her representative on the committee because I represent the federal caucus.
The nine members of the caucus and twelve committees of the House of Commons share responsibilities. Audrey has certainly represented the position that you have presented today to our federal caucus, and it's one that I try to represent around the committee when I can.
Mr. Tait: Okay.
In subclause 3(4) - this is a specific question that you were dealing with - it talks about the Government of Yukon having equivalent legislation in place to deal with endangered species. When we don't have any jurisdiction in the Yukon over habitat, how can you then come up with equivalent legislation? When you only have authority to manage wildlife, it's impossible to come up with equivalent legislation when you cannot deal with the habitat portion of that.
Mr. Adams: That's why I suggested to you that because of the rate of change and the very particular circumstance in the devolution process of the Yukon, it would be really good if you could look at those sections and say - by the way, our discussions, you realize, are already doing that, because it goes into the record and we look at what's going on and we see what different groups have recommended.
I'm sure you're right with respect to this habitat thing. I didn't know until you told us today, and our staff may not have known, or it may not have been high in their consciousness. So it's very important. You've said it, and you've said it again. If you can look at these things and flag them for us, I think it will help. I really do.
Could I comment on Ms Ford's comment and COSEWIC? Your point about representation was that we've had suggestions that first nations be represented on COSEWIC. I said I support that.
I also support, because of what's been said today and because of the particular nature of the territories...so it's first nations and the territories, if you like, because that would be the way I'd put it with regard to representation on the COSEWIC list. I support it, but it's very interesting, because as you yourselves have said, the Yukon does not face the problems this legislation is designed for, simply because of its nature. The problems are in the south, and we're trying to deal with those - extinction and extirpation of species and so on - in the legislation.
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It's a very interesting philosophical thing. Should we count the area and the species that are in the north, which are in reasonable shape, or should we over-represent the species in the south, which are more at risk? Do you see my point? But I would repeat: and the territories.
Thank you, Mr. Chairman.
The Chairman: Thank you, Mr. Adams.
We now have Mr. Forseth with one question, and then we will wrap it up, because we are running behind time. Mr. Forseth.
Mr. Forseth (New Westminster - Burnaby): I'll ask for a very brief response.
At times here it sounds as though we're getting back into a raw power struggle. At times I almost feel it wouldn't matter how well Bill C-65 were drafted. What I hear is that perhaps any legislation from Ottawa is seen as imposition by a foreign power and that a federal Canadian statute is really not yours.
Ottawa is trying to legislate for all Canadians, including Canadians of the north. So I'm asking, do you see any amendments that could be acceptable, or do you basically reject anything that comes from Ottawa?
What we're looking for is partnership. Obviously the administration of this act is going to be in your hands. You're the people who live there. The local cooperative agreements are going to be done by you folks. No bureaucrats are going to come from Ottawa to administer this legislation. This legislation will be administered by you, and the partnerships are being asked for.
This is the consultation process to say there is recognition of the local agreements and the devolution that's already occurred; can we make the partnerships happen in fact, rather than you just dismissing it out of hand and rejecting it?
Mr. Tait: I'll make an attempt at that.
Given what you've just said about the percentages and the application of this bill in the territories as opposed to the application provincially, all we're asking for is to go back a step to the way it was in the draft legislation and give us the opportunity to do something first. And yes, it's a spirit of cooperation. Do not impose your will and make us earn back the right afterwards.
It's unique for the territories. It's different from the way it is provincially. That's all we're saying. We've just heard that the bulk of the problem is in the provinces. Yesterday you listened all day to the people from B.C. telling you what percentage of B.C. this act would effectively cover: not very much.
So we're saying if you want a bill that means something, not one that has a high percentage, as boasted in here, make it apply to where the problem is and leave the authority to manage the wildlife with us. If we can't do it, then take it over.
The Chairman: Are there any other comments? Grand Chief.
Grand Chief Adamson: Thank you very much for that question.
Certainly we support partnerships. All we've ever wanted to do was create proper partnerships between us and other Yukoners: non-aboriginal Yukoners, late-comers, and newcomers to the territory. That's why we have been attempting to negotiate and have been relatively successful in negotiating agreements with the other orders of government in Yukon.
It would be wrong to leave this table thinking any piece of proposed legislation that flows from Canada would be rejected out of hand just because our noses are out of joint. That's not the case at all.
A very significant piece of legislation flowed from Canada earlier that addresses a lot of the disagreements that seem to be emerging here between us and you. We too ask for that same understanding and that same respect to those pieces of legislation.
I want to say there is potential for dealing with this legislation in a way that will address all the interests you hear before you, but the process for being involved in drafting the legislation and arriving at a consensus between the orders of government has to be seriously looked at. A blueprint and a process are identified in previous legislation.
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I do want to say that I regret the short timeframe we have to deal with this. I would have liked an opportunity to field some questions from Mr. Taylor.
We acknowledge your work in the past and acknowledge your understanding of aboriginal issues through your previous portfolio of critic for aboriginal affairs. We leave ourselves open, if not in this arena then certainly at another time, to discussing these issues with you.
The Chairman: I appreciate very much your concluding comment, Chief Adamson, in particular the remarks you made about Mr. Taylor's role in this committee. It is also our assessment of the role he has played for many years.
Mr. Van Dijken: Mr. Chairman, I wonder if I might have a very quick word in terms of the question just asked.
The Chairman: We are running out of time, but go ahead.
Mr. Van Dijken: From our point of view, this is an issue that demands cooperation and partnership, given the recognition that we were dealing with. The whole nature of the problem is such that it can't be taken care of strictly in parcelled-out jurisdiction. There has to be that coordination and there has to be that agreement. It's necessary. Without it, it's a useless exercise.
The Chairman: Thank you.
In the past two and a half hours - and I wish Mr. Tait were still in the room, he might have something to say on this - we have certainly learned a lot about the Yukon perspective. That has been a tremendous addition and a dimension we badly needed to learn about. We have certainly learned about the question of consultation and lack thereof, which we'll certainly take to Ottawa as an item for discussion.
Within the powers given to us, we will attempt to do our best, although I must stress that I cannot promise anything. Politicians these days should not make promises, period. We will attempt to improve the derogation clause along the lines that have been discussed this morning. Whether we will succeed on that with the Department of Justice, I don't know yet, but we'll certainly give it a very good try.
Mr. Tait made an interesting comment that struck me as being a tremendous contribution to the discussion - namely, the desirability of arriving at ``compatible legislation'', if I remember the term correctly. That is actually the essence of the whole exercise. If we can develop what some of us call ``mirror legislation'', although perhaps ``compatible'' is an improvement, across the country, we will go ahead in a very substantial manner. In my assessment of the situation, that would be a tremendous improvement. I wouldn't be surprised if by 2007 or so we would have either compatible or mirror legislation across the board. With some good will that can be achieved.
What I do take home - and I'm sure my colleagues do as well - are the following encouraging statements. First, the submission by the Council of Yukon First Nations, states, on page 12, in Grand Chief Adamson's phrase:
- I confirm that the CYFN supports the need for all three orders of government to work in a
coordinated fashion in order to ensure the protection of endangered species.
- The Board supports the concept of the Canada Endangered Species Protection Act and
recognizes the importance of introducing legislation that will protect endangered species and
their habitat.
The submission from the Yukon Fish and Game Association states: ``We recognise the need for national legislation in the field of endangered species protection.''
Finally, the Yukon Conservation Society says it supports the development of strong national endangered species legislation.
Obviously, there is here a very strong convergence of interests, hopes and even dreams. I hope you will, therefore, go back to the Yukon with the knowledge both that you have given us a good two and a half hours to better understand your perspective and that we share the same hopes and dreams.
Would anyone care to make a final comment?
Mr. Smith: We welcome the opportunity to make further presentations on specifically those questions that were asked dealing with aboriginal land claim agreements and participation on COSEWIC.
Thank you.
The Chairman: We will now take a five-minute break.
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The Chairman: Our witness is the Shuswap Nation Fisheries Commission on behalf of the Shuswap Nation Tribal Council, if I understand correctly.
We welcome you to the committee. May I ask you to introduce yourself and your colleague and then to proceed, please?
Mr. Fred Fortier (Chairman, Shuswap Nation Fisheries Commission): I thank you, Mr. Chairman.
I'm Fred Fortier, chairman of the Shuswap Nation Fisheries Commission. I'm also chair of the Canadian Columbia River Inter-Tribal Fisheries Commission. My colleague is Dave Moore, policy assistant for the Shuswap Nation Fisheries Commission. -*-*-*-*DISK$HOC$DATA01:[FIN_EDIT]SUST63036301.TSE
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I'd like to thank the chair and the delegates for allowing us to speak on this issue of the proposed Endangered Species Protection Act.
I'd like to start my comments by stating that extinction is forever.
On behalf of the Shuswap people and the tribal council, we thank the committee for the opportunity to present our comments on Bill C-65. At the same time we commend the Department of the Environment for taking this initiative, which may lead the way to the recovery of threatened and endangered species in Canada.
We also add that due to the lack of appropriate consultation mechanisms to obtain input from the Shuswap people through the commission, the tribal council, and organizations that represent the Shuswap people in some form or manner, this review doesn't live up to the full obligation Canada has to consult with first nations on these issues. It might be some part of consultation, but it's not the full extent of consultation. I'd like to note that, Mr. Chairman.
Our hope today is that through the advice given in our presentation and through the development of locally appropriate mechanisms employed in the implementation of this legislation, our bands may be more adequately involved in this important initiative in the future. It is only through their direct involvement that this bill may adequately address the conservation, recovery, and sustainable use of wildlife species, including local populations found within their territories. It is only through their involvement that this bill can respect the inherent rights of our Secwepemc people.
You have to understand around this table that our rights are territorial rights. Our rights to species and subspecies are guaranteed under the Constitution.
Look at the Shuswap territory and the area it comprises. It was referred to yesterday that in the Kamloops area there is the biggest sockeye run in the world, in the Lower Adams. But I should remind the people around this table that in the early 19th century the Upper Adams's stock of sockeye was at par with or better than that of the Lower Adams, which we describe today as the biggest run in the world. To note what our government's Department of Fisheries and Oceans has said, it was a miracle that they survived and regained that run this past year. I guess we're all aware of miracles that can happen.
On the issue of consultation, we have the right to give and Canada has the obligation to obtain a prior informed consent, not after the fact. They talked about partnerships with other first nations, with government agencies, and with the provincial government. We do agree that there have to be partnerships, through either existing treaties or treaties being designed today. In this province of British Columbia, the majority of Shuswap people aren't within the treaty process. That's an issue we're going to have to address through those negotiations.
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The following submission generally supports the concept of Bill C-65 and addresses some of our concerns regarding its implementation. It touches on sustaining local populations of wildlife as part of species conservation, the use of traditional knowledge and benefit sharing, and it calls for the alignment of Bill C-65 with Canada's commitments to the United Nations Convention on Biological Diversity. We respectfully submit our comments for your consideration.
Regarding the implementation of Bill C-65, the preamble to Bill C-65 makes reference to Canada's ratification of the United Nations Convention on Biological Diversity. The obligations characterized in the CBD regarding local and indigenous communities are specifically outlined in the CBD. Articles 8(j), 10(c), 17.2 and 18.4 in particular are central to the implementation of Bill C-65. They provide a framework for working with local and indigenous communities addressing the use of traditional knowledge, protecting and encouraging customary use of biological resources and benefit sharing.
These and other issues are presently under the global deliberations meant to guide implementation of this convention and are subject to the open-ended working group on article 8(j), engaged by the CBD at the third convention of the parties in Buenos Aires in November 1996.
On the issue of respecting traditional knowledge, the CBD in article 8(j) specifically addresses the obligation of its parties, one being Canada, subject to a national legislation, to respect the owners of traditional knowledge and to make arrangements for sharing of this knowledge involving its owners, and to ensure fair and equitable sharing of the benefits from the use of that knowledge. In addition, the convention recognizes the invaluable role that traditional knowledge should play in the management of biological diversity, and identifies the obligation for information exchange involving technical and traditional knowledge. This of course is subject to national legislation.
When it comes to traditional knowledge of the indigenous people, Canada has committed to putting forth the principle that traditional knowledge is at par with scientific knowledge. I think that says a lot about the indigenous knowledge we hold. If people want the knowledge of indigenous people in Canada there must be informed consent to take that knowledge. If there isn't informed consent, then that's the raping of a mind. We must share in the benefits from that knowledge and Canada must enter into negotiations with those communities that have that knowledge.
It's interesting to know that as Shuswap people, our elders told us about the knowledge they had, the knowledge of the fisheries species in our territory, and the provincial or federal governments denied that knowledge. It was then that we decided to go forward with ex situ conservation and the gene-banking of our stocks in our territory. This caused a little bit of an uproar not from the federal government - I believe they were there assisting us to do that - but from the provincial position, that, in the words of the provincial government, Indians had no business in gene-banking.
My comment to them - and I'll leave out a few words that I don't think the chairman wants to hear - was that until this province lives up to their obligations to the management of species in our territory, then we will proceed with ex situ conservation.
In relation to the board we talked about, COSEWIC, and the obligations they have to respect traditional knowledge, I think it is very critical. Scientists or the academic world, or the government in general, seem to think that unless you have scientific evidence there is no evidence. I think we're dealing with a different value system here and I think it shows.
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I think one of the main principles Canada has to deal with in terms of first nations is the definition of conservation. We are referred to in this bill from the preamble to about clause 39. However, the meaningful participation of aboriginal peoples is not clear beyond the use of management boards established under comprehensive land claims. The act references but does not respect, utilize, or protect traditional knowledge, as outlined in the CBD.
It does make adequate reference to the involvement of local first nations authorities and their knowledge in development of designations, recovery plans...nor provide the means to maintain constitutionally protected access to local wildlife populations.
One of the interesting things I've been dealing with for the last 10 years in terms of a fisheries issue is the Canada-U.S. Pacific Salmon Treaty. It seems we have an endangered species act put forward now; we have an endangered species act in the United States; and we have commitments by Canada at the international level, at the Convention on Biological Diversity, which lays out those principles.
By the way, the U.S. has not ratified the Convention on Biological Diversity. So we have two acts, I believe, that have to be harmonized using the principles of the convention, because we cannot have Canada or the U.S. use our fish as political pawns. We have a right, and that right is a human right, to those fish. People don't understand in this country that this right we have is a human right, and we talk about it. We cannot allow our government or the U.S. government to use those acts against each other. We're the ones who lose, as aboriginal people, in the upper rivers and all over the coastal areas.
Mr. Chairman, I think that's good evidence of where the endangered species act, when you look at both sides and at the international level...and we have to address that. We're making trade-offs for species at risk or endangered species of coho or chinook destined for the U.S. We're using it as a political pawn in Canada and a trade-off for sockeye.
If we're going to introduce an act in Canada, let's make sure it follows the principles Canada has signed on to at the international level, because there are implications to that.
When you look at the limitations of the act for the recovery of wildlife species in Canada, our presentation has emphasized the role of local and indigenous communities, our Shuswap bands in particular, in local problems, local solutions, not an Ottawa solution. An example is the Pacific salmon issue. We seem to have a lot of interference from people who at times really don't know what our fisheries are about.
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However, the strength of Bill C-65 will come from strong supporting language in the bill that protects our Canadian wildlife from small population extirpation, leading to the collapse of biological diversity and species extinction.
The Shuswap once enjoyed an economy of food and trade from the Columbia River salmon. Only recently have the members of the Canadian Columbia River Inter-Tribal Fish Commission and their U.S. counterparts signed joint international resolutions for the recovery of the Upper Columbia River salmon. This arrangement is based upon the aboriginal peoples' principle of environmental consciousness, spanning seven generations of planning.
However, in this bill, subclause 2(1) legislatively obliterates any memory of the Upper Columbia salmon beyond the 50-year horizon. It says ``wildlife species'' means it is presumed to have been present in Canada for at least 50 years. So our rights were frozen 50 years ago in the damming of the Columbia River, the Chief Joseph Dam, and the Grand Coulee Dam. Canada did not consult with first nations when they started negotiations with the U.S. to dam that river.
If this bill is enacted with this clause in it, you'll see a legal challenge from the first nations on the Columbia River. Our rights are frozen for this time, but we're saying that in a 150-year span, or in the seventh generation, we're going to see fish back in the Columbia River. That's a goal we have for the Columbia.
The application of this bill across Canada is unclear insofar as it obligates provincial and territorial jurisdictions to participate. As the bill reads, we are concerned that its application to federal lands limits the requirement of other governments to protect species from extinction. If in fact this bill is only able to apply to federally administered lands, we fear that disjointed control over protection of local wildlife populations will create a polarization of authorities and a patchwork protection for many migratory species of wildlife.
Certainly we can look at our parks system, where you have federal or provincial management. There might be wildlife species in some protected areas that we might not have access to.
In conclusion, we recommend that this bill be reviewed with respect to Canada's legal obligations to aboriginal peoples and its commitments to international treaties. We strongly recommend that this committee consider the need for this bill to reflect the role in wildlife recovery for local and indigenous communities, the value of traditional knowledge, and requirements to address resource benefit-sharing between corporate Canada and local communities, as this may be reflected in the survival of local wildlife populations.
We urge the committee to consider the reason for protecting endangered species in Canada and the relevance of historic wildlife assemblages - and we stress ``historic'' - to the intent of the bill.
Finally, we appeal to this committee to ensure homogeneity of this bill across Canada, its territories, and provinces so that we maintain community control but use the act as a framework for discussions.
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I thank you, Mr. Chairman. My colleague also has a few comments to make.
The Chairman: Thank you very much. I appreciate that, particularly your insistence about the relevance of historic memory and considerations in terms of wildlife.
Mr. Moore, would you briefly like to add something?
Mr. Dave Moore (Policy Analyst, Shuswap Nation Fisheries Commission): Thanks,Mr. Chair.
I want to clarify that the essence of the submission from the Shuswap Nation Fisheries Commission is that species are made up of assemblages of many subspecies, which equals biological diversity. That is the strength of a species. As in the stock market you can't depend on one stock, in the bill as presented, without arrangements with local and indigenous communities, you may see that the erosion of these stocks and the long-term erosion of the species is quite possible still. So you may be able to protect a sockeye in Canada, but will that sockeye survive the millennium and the next millennium and sustain future generations? Probably not.
So the approach we've taken in our submission is that Canada isn't the first nation in the world to look at this challenge, and it's certainly not going to be the last. This very same question and this very same exercise was undertaken in countries all over the world, which resulted in the Earth Summit and in UNCED's Convention on Biological Diversity in 1992.
This bill attempts to water down the kinds of things that have been learned in other countries around the world. What we're urging is that Canada has signed the Convention on Biological Diversity and ratified it through the presentation of implementation plans, and it's important that Canada set the national standard consistent with the international standards for protecting global biological diversity. However, it must then support the local management authorities that must apply and administer this legislation in the protection and recovery of local stocks or subpopulations, which ultimately will maintain the species as a whole.
Fred identified some very serious concerns, not the least of which has been Canada and the U.S. using endangered species as pawns in the international negotiations on Pacific salmon fisheries and pushing the biological envelope, the statistical envelope, resulting in what we heard yesterday from some of our presenters on the erosion of biological diversity in our Pacific salmon through by-catch. It's insidious, and it's not captured in this legislation. For 20 years our communities have called for the recognition that stocks of salmon are not returning to spawn in their streams.
Our governments have actually tried to use legal channels to stop our communities from trying to protect those salmon. Ultimately, some of our communities resorted to using gene-banking. The provincial government tried to legally block our communities from gene-banking.
I think the important message Fred outlined was that here was traditional knowledge coming to the surface, using a contemporary tool, but to this day nobody has recognized how important it is to maintain local populations, many of which have become extirpated and many of which are continuing to be extirpated. This bill will not consider them unless there is a local authority, negotiated with local and indigenous communities, that's linked to COSEWIC.
We made reference to the Convention on Biological Diversity. It's important to know that Canada, in its commitments to the convention, has created an open-ended working group involving indigenous and local communities, governments and third parties to begin to determine ways to implement the articles in the convention, some of which are addressed in this bill. The bill is not, at this point in time, properly aligned with that convention. That's something that would be valuable to look at.
We made reference in our presentation to articles 8(j), 10(c), 17.2 and 18.4. Respectively, they deal with the use and role of traditional knowledge, information-sharing arrangements for respect and use of traditional knowledge and benefit-sharing from its use, technical and scientific cooperation and exchange of information, and protecting and respecting customary use of resources. Customary use of resources cannot continue if a species has been extirpated within a traditional territory.
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In the case of the Shuswap I have watched the extirpation of species in the decade I have worked with them, and with the extirpation of a species of fish, so goes the right to a fishery. A right to a fishery is of no value if there are no fish left. My question is does that equal the extinguishment of a right? In the case of the Columbia, this legislation almost makes it law to extinguish a right. The Constitution says if you're going to extinguish a right, you must show clear intent to do so and have the understanding and agreement of those indigenous people in that process, and that's not been happening.
We've made specific suggestions on how to amend the proposed act, and we should probably respond to questions in terms of how to do that.
Thanks very much.
The Chairman: Thank you, Mr. Moore.
Madame Jennings, please.
Mrs. Jennings: Thank you for your presentation, Mr. Fortier and Mr. Moore.
Perhaps it might help you a little bit to know something more about us. It seems to me you're assuming motives from your members of Parliament, and maybe it's understandable, because I'm a stranger to you and perhaps some others at the table are strangers.
You were not here yesterday when I explained that it is my position and has always been, in the three years I've been in Parliament, that we take our directions from the stakeholders in any issue, regardless of what it is. We as parliamentarians take that information and then legislate solutions. That is very essential.
[Technical Difficulty - Editor]
The second thing is that you may not be aware either that I already have three bills in to try to protect the biodiversity we're really concerned about now with genetic engineering. I have three bills in now that protect the consumer for labelling, so that if something has been genetically engineered, we know the ingredients on the package. We know if rBST has been injected into our cows, and it's on the package.
[Technical Difficulty - Editor]
That lets you know a little bit about where I am coming from, and perhaps that gives you an indication of where my questions are coming from.
Also, Mr. Fortier, I must say I have been to the Shuswap many times. I've never... [Technical Difficulty - Editor] ...a remarkable river and a remarkable lake. It's very clean and pristine. I quite enjoyed it. But that was 20 years ago.
Regarding the statements today, subclause 14(1) says:
- The members of COSEWIC must have expertise drawn from a discipline such as conservation
biology, population dynamics, taxonomy, systematics, genetics or from traditional or
community knowledge of the protection of species at risk.
The Chairman: Would you like to tackle that? Please go ahead, with as short an answer as possible.
Mr. Fortier: It goes back to how you're going to consult with first nations in the province, especially the Shuswap people. What we have to be able to do is develop this bill in a partnership, not as an afterthought.
If we're going to have this partnership with Canada, then let's have a partnership. A partnership is like a marriage. The few of us who are married know what that partnership and that commitment means. Somehow I don't see this marriage between Canada and the first nations as a very good marriage. I think the presentations before us about Canada living up to its obligations in those treaties, regardless of when they were signed, from the 1700s to 1996, showed that Canada has a little bit of a problem living up to these agreements.
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If we're going to have an impact on what's going to be in this bill, then we have to have this arrangement and a government-to-government relationship. I think that's what we talk about politically, this arrangement, so that we can have a partnership, a true partnership.
Mrs. Jennings: So COSEWIC representation would be an improvement.
Mr. Moore: If I might suggest, the arrangement between COSEWIC and local indigenous communities is very important in that COSEWIC shouldn't try to have representation that somehow captures the essence of traditional knowledge across Canada. Traditional knowledge is very site-specific. Removed from the owners of that knowledge, it may not be used in context. COSEWIC should rather try to build a bridge between itself and the local and indigenous communities who have that understanding and ability to use that knowledge.
So it would be more of a process than fixing and trying to create ultimate representation, or COSEWIC would have hundreds of thousands of people on it.
Mrs. Jennings: You can't give me any specific answer on the wording, but you have suggested how we could change it. You're just not ready to give us any specific examples.
Mr. Fortier: When you talk about consultation you also talk, on the other hand, about the capacity to understand what the issues are. It seems to me, from my experience in the last 10 years of working with first nations and working with our governments, that there is this problem of understanding that some first nations don't have the capacity to address the issues you are putting forward. Whose responsibility is that? The Department of Indian Affairs?
There are a lot of first nations that really don't have the capacity to deal with all of these at a higher policy level, let alone a legal analysis of this bill and what it does to us. We have to have that capacity to deal with it. Some of us do. It's fortunate that Shuswap does have that capacity. Some other first nations don't, which is the sad part.
The Chairman: Thank you. Mr. Adams, please.
Mr. Adams: Thank you, Mr. Chair.
Thank you both for the presentation.
The point you were making about gene-banking went right over my head. Perhaps some other members know, but what was that?
Mr. Moore: Gene-banking is a form of -
Mr. Adams: I know what gene-banking is, just not this particular case.
Mr. Moore: It was an opportunity, a last opportunity, for one of our communities to conserve the genetic integrity of a local population in their backyard stream. As this legislation would suggest, as long as there's steelhead in the Fraser River the species is not threatened or endangered. Yet the fact was that a population of fish that was numbering 2,000 or 3,000 had gone down to 1,905, then 400, then 200, and then 150 fish. By that time the community was at its wit's end to try to convince the government that its rights were in jeopardy. The governments would not move. That's what put the Shuswap into the United Nations Convention on Biological Diversity, to look for a way, a tool, to at least conserve what little genetic integrity might be left, and they began gene-banking.
A number of communities partnered with that community and began gene-banking threatened stocks around the Shuswap Nation. It became part of a Shuswap territory-wide exercise to catalogue, to develop an inventory and to store genetic material where required if it was not being protected in the habitat by managers under the auspices of the Fisheries Act.
Mr. Adams: In the context of this, then, let's say the species in general is doing okay but there's a local variance. That's the point you're addressing, that this thing is a very broad brush, and a problem like that wouldn't appear in the picture. Is that it?
Mr. Moore: That's correct. In fact, it's evidenced by the collapse of the Pacific salmon fishery and the east coast cod fishery. It takes years before the erosion of those distinct little parts of the species, the local population, becomes critical to the point where the population or the species as a whole becomes volatile. It's that volatility that creates industrial disruption.
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Mr. Adams: So in terms of these 142 races of salmon that are supposed to disappear, although some people disputed the number, there were 142 local variants. They belonged to this river but they belonged to a larger species.
Is this example you're referring to near to that 142, or...?
Mr. Moore: I think that's an excellent question. I'm a member of the American Fisheries Society. In fact, I chair the indigenous peoples committee for the north Pacific international chapter. It was after nearly 10 years of lobbying when we finally gave up inside the agencies and had to use international pressure through this professional society to undertake an assessment of distinct stocks, because the agencies were not capable of responding to it under the existing form of the fishery.
My colleagues involved in the AFS report identified a number of stocks. It's important for this committee to understand that we do not know any more than the information given to us in that assessment. If you look at the text of that report, it identifies that over half the stocks still have not been identified in British Columbia. In fact, their assessments of the number of stocks in the Fraser River are based only on preliminary information and they indicate very clearly that this is not the most numbers of subpopulations, genetically distinct populations, but the least numbers of populations in British Columbia.
Mr. Adams: I noticed that you were here before, so I don't want to go through the clauses that deal with the involvement of first nations, but again, I would repeat that the more you can give us on those clauses, building in the involvement of first nations, the better.
I'll go back to what Ms Jennings pointed out, that subclause 14(1) says, ``or from traditional or community knowledge''. By the way, I think the example you just gave us is a good example of community knowledge rather than some general expression of it.
COSEWIC, it seems to me, is at the centre of this thing. The way I see it happening is that COSEWIC is there, and you'll obviously have people on it who are particularly well informed about the species at risk. Right? There's not much sense having people on there who are particularly well informed about species that are not yet at risk. This clause means, if that's so, that in that context you build in people with, as this suggests to me, traditional community knowledge. You heard us say before that we support that. So it's where they're at risk.
It does seem to me that this subclause has implications for who will be on COSEWIC at a particular time. The people who'll be on COSEWIC at a particular time will be dealing with species at risk or nearly at risk or something like that. Do you see what I mean?
Again, I would ask you - and it's the very centre of everything we're doing - that if you can think of ways of strengthening subclause 14(1) or the construct of COSEWIC, I would urge you to do it, to try to catch this example you've put forward to us.
Mr. Moore: Peter, I think your point is really important. We've made suggestions that arrangements can be made to address this recommendation through the bill by setting out co-management agreements that may be triggered by COSEWIC when a species is threatened.
What concerns me, after 10 years of trying to fight against political or development interests, is that an organization like COSEWIC may not wish to recognize a threatened stock, as in the case that caused gene-banking. I can't imagine how an expert in sockeye salmon from Ottawa could recognize that our coho populations on the west coast were threatened and endangered 20 years ago.
Two weeks ago the minister tabled a graph with our first nations in British Columbia and said that Canada was now committed to recognizing that this stock was threatened. He showed a graph that had a 20-year collapse of populations on the coast. This is the very same government that sat on the other side of the room from us when we said stocks were not coming back to spawn in our communities. They pointed at us and said we were fearmongers; this was the biggest run of salmon in the Fraser River in 100 years.
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People far removed from a local, distinct population of fish, wildlife, plants or indigenous people have no concept of the frailty of that local population. When they sit and make judgment on whether or not a species is threatened, it creates a problem. I know it will create a problem.
To address your question, I think if there's a way to fine-tune that judgment call by COSEWIC with local management authorities, such as what we heard in the previous presentations, the first trigger is the most important point. Otherwise, when our communities are finally consulted about the loss of a stock it's too late. The damage is done, and the rights have been affected.
So number one is fine-tuning that trigger by local arrangements with local management authorities. Number two is to then apply the standard, have a framework in place so that when the trigger has been struck, a framework is negotiated with local community management boards or what have you so that the recovery and sustained use of that resource is all captured with the local knowledge and the local industry and other interests, addressed locally. That's the important thing.
Mr. Adams: I think it's a very useful concept, but you realize, Dave, it's not possible to have thousands of people on COSEWIC. I know that's not what you're suggesting. We just can't. But the fact that it mentions community knowledge in this one does suggest to me - and it's nice the way you put it - that there is a trigger in there for that thought. We have no thought of people sitting in Ottawa dealing with these species at a very local level. First of all, we can't. The people who criticize us for not having resources.... We just can't do that.
What we're doing is establishing this safety net so that local people can take care of species at risk in some way. That's really the way I see it. It's partly because we can't do anything else and it's partly because it's the sensible thing to do.
This exchange is on the record. It's been very useful. But I would say to you that the community knowledge part of subclause 14(1) has the basis of this trigger that you describe. I think it does.
Fred, I don't know if you want to add anything.
Mr. Fortier: Mr. Chairman, one of the interesting things I see from a first nations perspective is that we have this intelligence at the national level in Ottawa that when we design a board and we want first nations advice - and I know there are complications about putting members forward on certain boards - it's after the fact that we are invited to participate and say, well, maybe as part of the board we would have certain first nations representation, or we could look at that.
I think that's what first nations have to decide themselves and get together, and maybe the regions or however we get together, and talk about that. We might not agree with this board being appointed by the government. An example would be the Pacific Salmon Commission. They appoint, through the minister, two first nations reps on that board. The rest are commercial people.
You think the fight against...Mike Hunter yesterday in his presentation. Those are the people we sit across the table from on those boards and deliberate with. Some of those discussions aren't very healthy. So I think we get into a situation now where as first nations we should be asked our opinion on whether we agree with the board and the structure of the board. We might say we want our own board. I'm just throwing these ideas out, but I would certainly look at and support a first nations board that would coexist in some way. The implications of somebody setting it up.... Dave explained the complications. I saw in yesterday's presentations that the economics in support of this must not infringe upon the economics of their industrial participation.
Thank you.
The Chairman: Thank you. At last you have met the man in whose name the upper and lower rivers have been named.
Madame Kraft Sloan, to conclude.
Mrs. Kraft Sloan: Thank you very much.
You have raised some very interesting points that I believe haven't been put forward so specifically but perhaps have been indicated more indirectly in some situations.
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Just so that I understand this section in your presentation - it's 2.4, ``Limitations to Bill C-65 for the Recovery of Wildlife in Canada'' - you say, as part of the definition, that ``Wildlife species means...presumed to have been present in Canada for at least 50 years''. Then there was the situation in 1942, where the dam eliminated 1,700 kilometres of salmon spawning ground.
If I understand this correctly, and you can correct my understanding if it isn't that way, you are currently working on salmon recovery planning through the U.S. endangered species legislation, but because the salmon disappeared 55 years ago, those recovery plans, according to the bill, would not be acceptable. Is that correct?
Mr. Moore: That's correct.
Mrs. Kraft Sloan: Do you have some suggestions here? Just eliminate the 50-year wording? Do you have some suggestions for amendments?
Mr. Fortier: If we're going to put a bill through and it's going to be accepted by the people of Canada through their deliberations, then I gather, when you table the final results, that the courts have laid out very specifically, amongst the court cases that have come out, that if you're going to infringe upon a right, then you must justify that infringement.
I would ask you, are you going to justify your infringement by putting this bill forward? Because our rights are frozen right now in the Upper Columbia that doesn't mean they don't exist. It means we don't have the access to the fish to exert our right to the fishery.
So I would ask you that question. It's a legal obligation Canada has that to introduce any act, they're going to have to follow the infringement clause within Sparrow. Because then we get into the infringement area and then we get into the compensation portion of it.
Mr. Moore: I'd like to suggest that removing the 50-year limitation in order to respect a goal of recovering historic population assemblages would be considered to be closer to ecologically balanced than maybe we're dealing with now - i.e., Pacific salmon.
Mrs. Kraft Sloan: There's another area that this brings out. Certain witnesses have come before this committee and said that the bill, directly or indirectly, discriminates against plant life in favour of animal life. There have been a number of historic strains of seeds and so on that we have lost usage of in this country, but there may be ways of bringing some of those back again.
Linked to the discussion you've been talking about, the gene-banking and this type of thing, we had presentations, when the committee was looking at the issues around biotechnology, that we will lose a lot of our historical seed stock and so on. So there's an interesting issue you have raised for us, that we may find ourselves in a situation where this 50-year limit is not a useful limit when we can think of all the things we have lost, both plant and animal.
As well, if we added genetically distinct populations of animals to the definition of wildlife species, would this help with some of the issues you have with the different races of salmon we've been hearing about?
Mr. Moore: Yes, it would. It absolutely would. The prohibitions outlined by the bill, if applied relative to distinct populations, would create disruption within industry. It would create prohibitions that would enable the protection of distinct populations that may not, at the present time with the present bill, seem economically feasible to proceed with.
In some cases, as we heard in one of the presentations yesterday, the commercial fishing industry is asking Canada to accept that the industry, in its present form, cannot stop overfishing weak stocks co-migrating. That's a fact in the existing structure of the fishery.
Indigenous people in local communities have proposed how to change the fishery, but Canada's not prepared to accept that approach even though other countries in the world have, because their existing industry is pushing them not to accept that. They have economic commitments to canneries, between corporations, and transboundary commitments. Those economic considerations may override any attempt to put genetically distinct populations as a priority, but if it were, we would be able to preserve species in Canada.
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Mrs. Kraft Sloan: I think this goes back to your earlier comments around community knowledge as opposed to a general approach around traditional ecological knowledge. I guess some of us are assuming that when we talk about traditional ecological knowledge we're thinking site-specific, but I think it's very good that we articulate a clear difference between that and community knowledge, and that when we start talking about genetically distinct populations we get into some of that real concern about what's happening in the community that contributes to the health and biodiversity of a species overall.
Mr. Moore: The immediate economic benefits of avoiding the question of genetic diversity do not outweigh the long-term benefits of protecting those genetically distinct populations that will make sure we'll have fishing industries for, we hope, thousands of years. Ignore them now and that time line will surely be shortened.
Mrs. Kraft Sloan: That relates back to my earlier comments about plants. We get into an industrialized complex in agriculture and we get into monoculture, which decreases not only the number of species of things that are grown on farms but also the source of those individual species. I think these are very important things.
I had the pleasure of being with the Canadian delegation when we were in Yellowknife at the Arctic parliamentarians conference. When we talked about sustainable development we added things that spoke to spirituality as well as the historical knowledge and quality of a natural environment. So I think these are very important points you've raised.
Thank you.
The Chairman: Mr. Fortier, would you like to have the last comment?
Mr. Fortier: We had a discussion with the Department of Indian Affairs the other day around consulting - and I use the word ``consulting'' very strongly - about their sustainable development strategy in which...that act that was passed, that every agency of the federal government has to produce a strategy. We were talking about what a sustainable development strategy is, and if there's such a thing as sustainable development. Let's talk about what the principles are first before we start talking about what the definitions are.
For example, we have a plant in our territory, and probably in other territories of indigenous people, that we call the Indian potato. It grows in an area in our territory. These species of potatoes are getting smaller and smaller. They're hard to find. There are some areas on which some people have a tenure. So when you talk about saving that species, then you have to look at what the industrial activities are that are happening right there. The comments I've heard in the last couple of days from the industrial participants are that they don't want to see any infringement on their industrial activities or the economic benefit they derive from that industrial activity.
So that's the basis of your.... From one end you're saying, well, we'll support the act but please don't let it infringe upon our economic...and on the other hand we're saying, well, there's this issue of protection of rights that we have to respect and protect within the Constitution.
I see us as coming together and having an act that works, but works for all of us, and that also has to be harmonized with the commitments Canada has on an international level as well as with the U.S.
The Chairman: Thank you.
This has been a very productive hour. On behalf of the committee, I would like to thank you, Mr. Fortier, for your brief and for bringing out so forcefully the traditional knowledge component, the protection of aboriginal rights and the limitations to the bill. We'll certainly study your comments carefully.
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I would also like to thank Mr. Moore for bringing out in such an interesting manner, in reply to Mr. Adams, the genetic component, the genetic dimension. Whether we'll be able to insert it into the legislation I don't know, but we'll certainly have discussions.
On behalf of the committee, I would like to thank you. With your presentation, our consultation and hearing in Vancouver comes to an end. We will fly to Edmonton this afternoon for a series of consultations there, beginning tomorrow.
For the benefit of members I would like bring to your attention some useful information prepared for us by the clerk about next week.
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Between Monday afternoon and Tuesday morning we will have three witnesses - namely, the Canadian Wildlife Service; Ontario Environment Farm Plan; National Agriculture Environment Committee; and Canadian Institute for Environmental Law and Policy.
We'll be ready, by Tuesday afternoon, for the appearance of the Minister of the Environment, which will be televised.
There will be time to digest all that on Wednesday. On Thursday morning we will have our hands full with Environment Canada, Fisheries and Oceans, Heritage Canada, and Indian and Northern Affairs.
For the members of the opposition in particular, legal counsel has been appointed to the committee in the person of Louis-Philippe Côté.
Finally, Monday, February 10, we will commence at 3:30 p.m. the clause-by-clause study. The clerk also wants to bring to our attention the fact that amendments should be delivered by next Thursday. They should be given to the clerk who will then deal with the legislative counsel. So there is a time limit for the notification of the clerk.
Madame Kraft Sloan.
Mrs. Kraft Sloan: I don't know how many times I've looked at this bill myself, but under species, it's if they're native to Canada or if they have come in without human intervention. So your situation is actually covered. I'll show it to you later.
The Chairman: Is that something for the record? Is it a correction?
Mrs. Kraft Sloan: Yes.
The Chairman: Well, then, please let us know.
Mrs. Kraft Sloan: On page 4, the definition of ``wildlife species'' says:
- a) is native to Canada; or
- - so if it's native to Canada, then it's covered - and
- b) extended its range into Canada without human intervention and has been present in Canada
for at least 50 years.
Mr. Moore: Our point is that the stocks were extirpated upon the building of Grand Coulee Dam and that was more than 50 years ago. If today this became law, they would be legislated extinct.
Mrs. Kraft Sloan: My reading of this is that because they were native to Canada they would fall under paragraph (a).
Mr. Moore: Within the last 50 years?
Mrs. Kraft Sloan: No. It's (a) and then (b) if they extend their range. The 50 years only qualifies them if they have extended their range into Canada but were not native to Canada. Do you have a different interpretation?
The Chairman: Is that sufficiently clear to you?
Mr. Moore: We would have to seek legal opinion. I'm not convinced.
The Chairman: If you would like to talk to our researcher, Ms Kristen Douglas, as we break up, she may be able to elaborate further on this.
Mr. Fortier.
Mr. Fortier: I have a comment, Mr. Chairman. I really don't understand why we have a 50-year limit in there. Maybe you can explain to a whole pile of people across Canada why that paragraph is in there in the first place.
The Chairman: Yes, that's an interesting point. We may not be able to give you a satisfactory answer to that.
Mr. Knutson.
Mr. Knutson: The point is that sometimes an animal may come from another place. For example, a sea lamprey may enter the Great Lakes, and it may be treated as a geographically distinct population; but it's not a species that's native to Canada and doesn't belong here, so there are efforts to kill it and wipe it out because it doesn't belong in the Great Lakes. If we didn't have that distinction of what's native to Canada and what's not native to Canada, it might come under the act as an endangered species, as a distinct geographic population.
So they make the point that if it's not native to Canada but has been here for more than 50 years, then perhaps that's an indication that it belongs here now.
The Chairman: Perhaps Kristen Douglas can give an interesting elaboration on this particular aspect of the 50 years and put it on the record.
Ms Douglas: I think the concern comes from the concern about extending protection to extirpated species, and we've heard that from other witnesses. That's something that could be looked at in the context of the prohibition: adding extirpated species, so that if they're being reintroduced we can protect them.
But the definition of ``wildlife species'', which is the part of clause 2 that you've addressed, has a two-part definition. A species is a wildlife species if it is either native to Canada or has come here without human intervention and has been here for at least 50 years. So there is no 50-year limit. Any species that is native to Canada, even if it's not here any more, is a wildlife species - that's my opinion - in this definition.
The Chairman: All right.
Mrs. Kraft Sloan: It's very useful that you raised it. If you have another opinion on that, please let us know. Thank you.
The Chairman: All right. We'll leave it at that.
The meeting is adjourned. Thank you very much.