[Recorded by Electronic Apparatus]
Wednesday, January 29, 1997
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[English]
The Chairman: Order. Bonjour, mesdames et messieurs. We are glad to be in Edmonton and to have the opportunity to resume our consultations and hearings.
This morning we are honoured by the presence of an elder of the Alberta Treaty Nations Environmental Secretariat. We will start our proceedings with a prayer given by Elder Good Striker.
Elder Rufus Good Striker (Alberta Treaty Nations Environmental Secretariat): First of all, I will explain a little bit about our way of praying. We were taught to respect the Creator's creation, and we were taught that we should not ruin His creation. Those are things we talk about.
You'll hear an elderly one talking, praying in his tongue. You'll hear that he is covering the four stages of life: childhood, youth, adulthood, and back to childhood again. He covers the four seasons and the four stages of life. Those are very important to us. Those are our teachings.
I'll now resume in my tongue, the Blackfoot tongue.
[Witness speaks in his native language]
The Chairman: Thank you, Elder Good Striker. We'll wait for the arrival of your nephew for his presentation. In the meantime, I have a few brief announcements.
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The clerk informs me that some of you saw in yesterday's Globe and Mail an article by Anne McIlroy on a poll concerning this particular piece of legislation, Bill C-65. For those of you who would like to see it, please ask the clerk to make a copy for you.
In today's newspaper, for those interested in the Ottawa scene, there is a remarkable item related to the cultural industry and whether or not they're covered by NAFTA. Anyone who is interested in that aspect ought to find a few minutes to read it, for reasons too long to elaborate on.
In addition to that, there is a remarkable letter to the editor by a certain Zane Boyd, entitled ``Forward to the Past''. I'm taking the liberty of bringing this to your attention, as a personal note.
Apart from that, the clerk would like us to remember that a week tomorrow is the date by which he would like to receive the amendments. I'm saying this as another reminder, because this date is rather important to our proceedings.
I see you have arrived, Mr. Good Striker. We welcome you to the committee. Before your arrival we had the opportunity to hear Elder Good Striker say a prayer, for which we are very thankful.
You now have the floor. After ten minutes I will give you a slight signal that you have another five minutes, and then we will have the balance of the hour for questions and answers.
If you have anything you would like to circulate, then by all means hand it over to the clerk.
Mr. Duane Good Striker (Director, Alberta Treaty Nations Environmental Secretariat): Good morning. Thank you for having us here today.
The Alberta Treaty Nations Environmental Secretariat, or ATNES, is an organization that has been created from the Alberta chiefs summit process. Our organization is the watchdog organization for all environmental activities currently going on and representing international issues concerning the treaty areas of Alberta, Treaties 6, 7 and 8. We do see this organization growing into British Columbia, NWT, Saskatchewan and Montana because of the treaty area overlap.
We are here today to talk about endangered species and the legislative act and regulations that will be formed. Primarily, we had some difficulties being formed at one time. The Department of Indian and Northern Affairs did not recognize the organization of ATNES, but Minister Irwin came out to Alberta in July for a face-to-face meeting with us. We had in the room ten chiefs and different members from the Alberta region of Indian Affairs. We clarified the situation of who ATNES was.
At the time, we let the Alberta region know that ATNES was not only the board chiefs of ATNES, who are representatives from Treaty No. 6, 7 and 8 - James Badger, from Sucker Creek, representing Treaty No. 8; Ron Morin, representing the Enoch Cree nation, just outside Edmonton, for Treaty No. 6; and formerly, Philip Big Swan, representing the Peigan Nation out of Treaty No. 7.
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ATNES is not just a group of elders who have given us guidance on how we should be acting for the people and the environment. We let the minister know directly that ATNES represents that 65% of Alberta's 75,000 treaty Indians who have no environmental protection, education, regulation or authority over their areas. So that clarified the situation from ATNES' point of view, and we do have some recognition from the Department of Aboriginal Affairs and Northern Development in Alberta now.
I'll move on into our submission concerning the endangered species and ATNES. Primarily, we'd like to talk about the treaty area in relationship to species affected in Alberta.
The animals that have been classified as either extinct, endangered, threatened, or at risk have always had a place in the ecosystem as a whole, with a defined purpose for the benefit of other animals. We, the Treaty Nations of Alberta and the Americas, have considered the animals as direct relatives to ourselves and to all other forms of life.
The treaty lands of Alberta were established prior to the creation of the province of Alberta in 1905. Treaties were signed with the nations of the Blackfoot, Dene, Sarcee, Beaver, Cree, Chipewyan and Nakota, which, through treaty, agreed to share the land and resources with the newcomers in exchange for medicine, education, tools and implements for education. The Crown received good government and peaceful coexistence in return for the right to share the land and resources for all generations to come. At the treaty negotiations of Treaties 6, 7 and 8, at no time was there a discussion of the unique relationship that existed between the treaty nations of Alberta and their relatives in the surrounding environment.
It is well known to the treaty nations of Alberta that we have a defined responsibility for the other forms of life, with whom we have had a very defined coexistence, for our mutual survival. The treaty nations and this part of the great web of life have always understood and maintained this continuing relationship within the area now known as Alberta. Unfortunately, the same cannot be said of the Crown, which in the last century encouraged the slaughter and near extinction of the great buffalo herds that once roamed this great country. It was a native American who saved and cultivated from extinction the surviving buffalo, from which Canada has benefited through their use in our national parks as a draw for tourists from around the globe.
The treaty areas have always been designated to the treaty nations of Alberta for their specific use in fishing, hunting, trapping and gathering all species of animal and plant. The treaty nations of Alberta have had this Creator-given right of use since time immemorial. As you have heard from the elders present, this existence has always been based on our understanding of sustainable harvesting and gathering techniques in order to not deplete a resource for future generations. The treaty areas of Alberta have always been taken care of by the treaty nations of Alberta through our understanding of the natural cycles that must be kept in balance through annual ceremonial occasions, many of which survive today through our elders and youth.
The second point we would like to bring up is the treaty lands and regulations developed for our relatives affected. Based on the areas identified by the said treaty negotiations, the treaty nations of Alberta recommend to the Standing Committee on Environment and Sustainable Development a regulatory regime that would follow the original boundaries set out by Treaties 6, 7 and 8 in Alberta for the enforcement of the endangered species act, and for the protection of all the identified species. The rationale for this recommendation is that the Canadian Council of Ministers of the Environment proposed to harmonize standards that have always existed for the treaty nations of Alberta, but which have never received any federal or provincial support unless there was some form of monetary value attached to the resource in question.
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The treaty rights of the Alberta treaty nations have protected status in the Canadian Constitution. These recognized treaty rights should be afforded to our relatives, for whom we have a genuine concern through our continued reverence for all of the natural world. The COSEWIC committee has jurisdiction on federal lands, but the committee does not have adequate content. In that regard, it has no credibility in the Alberta treaty nation communities.
The third point -
The Chairman: Excuse me for interrupting, but is the word ``aboriginal'' in the brief by mistake, or is it there deliberately?
Mr. Good Striker: I'm sorry, that should be ``aboriginal content''.
The Chairman: Thank you.
Mr. Good Striker: The third point is the treaty area in relation to the Natural Resources Transfer Agreement of 1930.
The Natural Resources Transfer Agreement of 1930 was made into law without the consultation or the consent of the treaty nations of Alberta. This act has had a profound effect on the habitat on which many of the endangered or threatened species rely for survival. The treaty nations of Alberta have documented how the NRTA becomes an effective tool for resource development where lands that have been traditionally used for hunting and gathering by the treaty nations of Alberta are concerned. Unfortunately, the federal government has failed to exercise its fiduciary responsibility to the rights of the treaty nations of Alberta to carry out a lifestyle of sustainable harvesting of their natural resources for subsistence or medicinal purposes.
Finally, the fourth point concerns the jurisdiction and authority of the regulations in the specified treaty areas of Alberta.
The relationship of the species affected by this act should also take into account the United Nations Convention on Biological Diversity. The treaty nations of Alberta and Canada hold vast amounts of knowledge about the natural environment that has not been identified through the western scientific method of taxonomic identification and classification. Part of this non-identification is due to the fact that traditional environmental knowledge has only recently been held comparable to western science in the effects of data collection and evaluation. Only the holistic approach has seemed to have impacts of gigantic proportion on the conscience of modern science.
The Convention on Biological Diversity is adamant in sharing the benefits of science and traditional environmental knowledge - I'm sorry, ``TEK'' means ``traditional environmental knowledge'' - for all of mankind, but the Government of Canada failed to act in a responsible manner by informing the treaty nations of Alberta about the implications of this convention in relation to the endangered species legislation. Although our notification of species has been identified by western science, it is well known in the treaty nation communities for its real value to the environment as a whole, and to mankind in particular. It is general knowledge that a minute fraction of information about the natural world is known to western science, but a great deal is known by the treaty nations of Alberta and by the Americas' indigenous populations.
The Alberta Treaty Nations Environmental Secretariat takes very seriously the magnitude of the Convention on Biological Diversity in relation to the species being affected by mankind, and to the survival of all threatened or endangered species on a planetary scale. This convention will prove to be beneficial to all mankind, but only if all mankind has equal voice in the matter.
That is our submission.
The Chairman: Thank you for your most interesting submission, Mr. Good Striker.
Mr. Forseth, followed by Mrs. Kraft Sloan, Mr. Steckle and Mr. Adams.
Mr. Forseth (New Westminster - Burnaby): Thank you, Mr. Chairman.
I'm looking under section 3 in your presentation. You make a statement that says:
- Unfortunately the Federal Government has failed to exercise its fiduciary responsibility to the
rights of Treaty Nations in Alberta to carry on a lifestyle of sustainable harvesting of the natural
resources for subsistence and medicinal purposes.
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Mr. Good Striker: A primary case - and this is one of many cases that could be used an an example - is the Lubicon Cree situation in northern Alberta. They have a genuine claim that has not been processed properly by either the federal or provincial government. In the meantime, their area of claim is being exploited by multinational logging companies, so their ability to live a subsistence lifestyle and do sustainable harvesting of the wildlife is being severely affected. This has happened primarily because the NRTA gives the right of a province over that area.
Mr. Forseth: Of course, we have many examples across the country of uncompleted land claims and disputes. I come from British Columbia. British Columbia has a significant problem of uncompleted land claim negotiations, so I understand the focus of your comment there.
I want to direct your thoughts to two specific points in the bill. One is on page 5, where in subclause 2(2) it says clearly, in the definitions section, that:
- 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.
I want to provide you an opportunity to respond to those two specific clauses, which are included for the recognition of the aboriginal fact in Canada. Are those terms adequate for your concerns? If not, what is your suggested wording to improve or to expand those clauses?
Mr. Good Striker: Concerning the definition of treaty rights as defined by the Constitution, I have tried to make a little bit clear here how we define our relatives out there. When the treaty was being signed we talked about the land and resources. We talked about the top six inches. But we didn't talk about our relatives.
We understood, when we signed the treaty, that we were signing on behalf of our relatives. Now, 110 years later, finally the dominant society has a concern for our relatives. But we have always had a concern, with ceremonial cycles every year for 7,000-plus years. We know what endangered species are.
The treaty right has never been defined specifically, but it will come up soon. Canada is going down the road where it has to define decisions on what we are and what these treaty rights are. We're trying to bring the point today that we are defending our relatives, because we have had them as relatives. We take them as relatives.
On COSEWIC and TEK, that is a gigantic issue concerning the Convention on Biological Diversity. Again, I've brought it up in a form that says we were never, ever consulted in 1992 when Canada signed the Convention on Biological Diversity to release traditional knowledge to the scientific world.
To put it into perspective, if you look at traditional knowledge, you have 60% right now. The world has 60%. You have tobacco, you have coffee, you have beans, tomatoes, corn. In the Convention on Biological Diversity they talk about copyright. They talk about valuation. They talk about proper taxonomic terms. Okay. That's fine. As I say in the last line, here, this Convention on Biological Diversity is a beautiful thing, but you'd better stick to the rules, and the rules state that the original owners of that information get the copyright, get the valuation, get the taxonomic terms.
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So let's deal with the 60% first, before you even start thinking about discussing the last 40%, which is really important to us, because that is the core of our being, our interaction with the environment. That's why it's really important that you have aboriginal content on COSEWIC from anywhere in Canada. It doesn't matter. It's all the same.
The Chairman: Thank you. Next is Madame Kraft Sloan.
Mrs. Kraft Sloan (York - Simcoe): Thank you.
On the second point in your brief, I was wondering if you could clarify a couple of things for me, please. It states that you're recommending to the committee a regulatory regime that would follow the original boundaries set out by Treaties 6, 7, and 8 for the enforcement of endangered species. Are you talking about expanding the scope of the land that would be covered by the endangered species bill? Is that correct?
Mr. Good Striker: Exactly. The proposed act is enforceable only on federal lands, I believe, so it's national parks, Indian reserves, and federal facilities. But we are looking at this from the perspective of our relatives. Our relatives do not respect these imaginary lines on the earth. But we do respect the area that was signed under treaty before the Natural Resources Transfer Acts, before the existence of Canada.
Primarily we're looking at Alberta right now. To set up a regulatory regime like that, the Alberta Treaty Nations Environmental Secretariat, through the chiefs summit, are recommending that we, as treaty nations of Alberta, go after the enforcement of all environmental activities within our treaty areas. This is unfolding as we speak. Today in Calgary the chiefs, the leadership of Alberta, Manitoba, and Saskatchewan, are meeting to discuss the implications of the NRTA. That will be going on over the next two days. As I believe you know, a $10 million suit has been launched by an Alberta band on the NRTA against the federal and provincial governments.
Mrs. Kraft Sloan: If I understand you correctly, you're recommending that the endangered species legislation be extended to cover these treaty lands and it's your people who would act in enforcing the regulations?
Mr. Good Striker: The Alberta government is currently downsizing its environmental department and giving it to industry. That's giving the chicken to the wolf to watch over, or vice versa.
We the Indian people are being affected in our treaty areas, our traditional hunting, trapping, gathering grounds where the endangered species are. We believe by treaty area we have a right to be enforcing these laws, through the help of the federal government and the cooperation of the provincial government.
Mrs. Kraft Sloan: Yes, I have very great concern over the whole process of devolution from federal to provincial and hence to the private sector, or just pleading ignorance, ignoring it. We received a presentation yesterday from Grand Chief Adamson, from a Yukon organization. She made it very clear to the committee that the federal government had no business with endangered species legislation in the Yukon. She rejected it totally. Your proposal is asking us to expand the scope of our legislation. So I see this as a very interesting difference of opinion on this issue.
You have just indicated to me, in clarifying my question, that you were looking to the federal government for support in your enforcement of the regulations. I wonder if you could outline for me what you thought that support might entail.
Mr. Good Striker: It's very difficult to talk with any government, because the government changes from four years to four years, but we are open to having mutual discussions on what this all means and how it can be rectified. The best mechanism that exists right now is the harmonization process through the CCME. The Alberta Treaty Nations, ATNES, is looking at the CCME to develop standards for all environmental compliance for activities on reserves right now. They have a draft paper being developed as we speak today.
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Mrs. Kraft Sloan: It was a recommendation this committee had put forward within the Canadian Environmental Protection Act review as well, but I think that particular chapter, where we were dealing with some of those issues as a committee, was one of the most problematic chapters for us. We struggled with it a great deal, because native communities across this country have varying capacities to undertake some of these activities themselves. I believe it's very unfair to put the onus on a people who don't necessarily have the resources to undertake these activities.
If the chair will indulge me - this may be a little bit off topic - perhaps you could tell us a little bit about the secretariat and some of the activities you might be able to undertake vis-Ã -vis the enforcement of an endangered species legislation.
Mr. Good Striker: We have a draft proposal into the Department of Indian Affairs right now concerning the development of an internship project for environment officers in Alberta. We have a buy-in from Alberta environmental protection, Health Canada and DIAND Canada. The proposal is being drafted by the Grand Council of Treaty No. 8. It initially was an ATNES project, but we have so many other things to do we've basically given them the mandate to do it.
It is not as comprehensive as we would like, and that is where you come in as a committee. We would like to see Resources Canada, HRD, DND, Forestry, all federal agencies dealing with the environment, have their doors open for our internship project to go ahead so that we can train our people effectively to deal with all issues, because Alberta has everything - everything except nuclear.
As an organization we are looking out for all tribes, but each tribe has a veto power to tell us to take a hike. That is their prerogative. Currently the Cheviot Mine situation is a prime example. The band there is going to be affected by this mine activity, but they've said let due process take precedence here and we'll see where it goes. We are prepared to come in with the Convention on Biological Diversity to back them up, with the other 43 bands of Alberta, and traditional knowledge. But they're looking for the best solution internally.
In terms of the CCME we're talking about training dollars. We're talking about a commitment. How much money has the CCME spent over the last two and a half years? They invited the Indians to the table in the last two or three months of their term.
I went to the gathering in Toronto. I sat there for two days and listened to everybody's speech on what the CCME is going to do. I stood up and talked to all the people. I made one very simple statement, that if there were any environmental standards on reserves across Canada, they would be the highest. So what does the CCME do three or four months later? They announce that they're going for the highest possible standards.
What does it take? Does it take one crazy Indian to stand up in front of a room after two and a half years of people sitting around spending lots of money when they could have been developing a pilot project in one province with Indian communities to develop a harmonized standard? This is not rocket science. It is simply community working together with the government to come up with common-sense answers.
Now, we know reserves do not have high-tech industries, but we are being targeted for high-tech waste through nuclear dumping, if it's not already happening. Ipperwash was in the paper today.
We have an organization here in Alberta that has gone before the chiefs of Alberta and put six resolutions down at three of their meetings that all were passed unanimously. We're thinking about how to do this effectively, cooperatively and for everybody's interest - not only the red man but also the white man, the black man, the green man and the space man. We all have to live on this rock. We have had an understanding about sustainable development, about endangered species, for thousands of years here. We're willing to share it, but we need some cooperation and we need some help.
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Mrs. Kraft Sloan: Thank you.
The Chairman: Thank you. Mr. Steckle, please.
Mr. Steckle (Huron - Bruce): Thank you for appearing before us this morning. You've already addressed some of my questions, but I want you to elaborate somewhat.
In your address this morning, you mentioned that the absence of native peoples on COSEWIC represents some concern for you. How would you see the composition of COSEWIC addressing that issue, given the broad base of native peoples in Canada and the various groups of natives across Canada? How would you see a fair composition of representation on that? That is one question.
The other question has to do with TEK, as you mentioned, the traditional environmental knowledge, versus scientific knowledge. Perhaps you can enlighten us. We've heard this before. We heard it yesterday.
How can we better understand how you would see yourselves bringing forward that knowledge? How then could that knowledge best be used in the determination of direction, either for COSEWIC in the determination of species that have become extirpated, or else going into an endangered species class? How do you see that knowledge being passed forward? Has there not been an acceptance of your willingness to bring forward this knowledge?
Perhaps you can enlighten all of us here as to what the process has been and how we have failed you in addressing your concerns and bringing forward the kind of information you might have.
Mr. Good Striker: I would like to address the first point of COSEWIC. While it's a common-sense approach, if you look at it realistically, how many people are there on COSEWIC right now?
A voice: There are 28.
Mr. Good Striker: That's a lot of people. How many of them are scientists?
The Chairman: Most of them.
Mr. Good Striker: Okay. So basically we have a coastal region, an arctic region, a plains region, a shield region and another coastal region. How many people is that? Five or six. I think that would be inadequate to represent the ecosystems, the different types of animals and plant species that reside in those ecosystems.
Yes, I believe these people should be aboriginals. But I also believe they should have 100% TEK knowledge behind them, or 100% academic training as a scientist, in order to sit on that committee. It is not impossible to deal with it that way. You have to find these people in the communities - they exist - where they're respected, where they can go before a community and say their piece. There are others who are not up to speed on this, but they get appointed for different situations. So I guess you have misrepresentation. But let the people find out who they are.
I'm going to be meeting with the National Aboriginal Forestry Association this afternoon and tomorrow in Winnipeg. We will be looking at Alberta, Manitoba, Saskatchewan - looking for that right person. We're already moving on what you're talking about. We're looking for our nominations for COSEWIC. Let us decide, because it doesn't look good when we look at a piece of paper and we don't know who this guy is. We've never heard of him before, but he's making statements or developing regulations on our behalf that are not realistic to our direction as a people.
On traditional knowledge, as I said, you have 60% right now. That has to be hashed out, because a lot exists out there right now. If you look at the city and town names of Alberta - Red Deer, Medicine Hat - those are Indian names. But for one name, Red Deer - this person here will tell you - there is a whole history behind that, and it's not just a story. It's like reading a document as a scientist. Every paragraph of that story has meaning directly related to the environment in some form or another. But you're not reading it the way it's supposed to be read. You just see it for....
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A popular expression in the Indian community is ``if you write it down, they'll believe it''. But the reality is that if you talk it and you understand what the talk is, you get the real value.
So with traditional knowledge, we have to look at the bigger picture here. We're looking at three ecosystems in Alberta, three different perspectives, but they are very valid, because it's still there. If oil and gas activity...that's one that runs right across the board. It can be translated in three different ways by three different cultures.
Traditional knowledge in the forestry sector is incredible. But what are we doing to it? We're not acknowledging it, or when we do, it's just put on a shelf. We have traditional knowledge on the forest in Alberta. We have the rain forest of Alberta being cut down. We're losing it. The biodiversity is going just as fast as in the Amazon.
Traditional knowledge in the northern river basins study - fantastic work, beautiful stuff. What does the study reveal? That the water - quality, quantity - is being affected. Traditional knowledge backs that statement up. But what does the Alberta government do? They put the Alberta water bill on the table, trying to claim all the water. It's the first province I know of that is trying to claim all the water in the province. The Indians have countered by declaring our stewardship of the water before the existence of the country, the province. What we're saying on that, based on our traditional knowledge, is how can the province claim the water when they can't even take care of it, based on their scientific study?
So traditional knowledge is valid and can be used, but we have to clarify the Convention on Biological Diversity, because that is a major tool for the world's mega-corporations to exploit it. And it is being done right now in the treaty areas of Alberta.
The dollar is an influential thing. Again, it comes down to one of those quotes: ``Only when we have cut down the last tree will we realize we can't eat money.''
Mr. Steckle: I might just ask you to clarify, for the sake of the committee and for the record...you mentioned five or six different areas that would find representation. In making that statement, were you indicating that native people should have five people on COSEWIC, or were you saying those are the five broad areas that would find representation? Do you believe you would be able to find suitable people, people meeting the scientific requirements, having the knowledge, among your people, and they would satisfy all the native people across this country?
Mr. Good Striker: I'm glad you brought that out in that form, because five people of native ancestry is a small number to be on COSEWIC, because in all the documents concerning the environment ``aboriginal'' comes up as a term, ``treaty right'' comes up as a term. No other peoples are identified. That's why we take the stance that our relatives are being affected, because we're in the same boat. If you drive down the road and you pass that imaginary line, you know you're on a reserve. Why? It's because of the environmental conditions. We don't have the protection afforded to all other Canadians, which is really sad for the Government of Canada.
So to find five people who will be respected in those five regions...we could do it in a very short time, because they exist. There are people who are trained in the sciences. I'm a wildlife biologist myself. I'm trained as an RCMP. I'm trained as an EMT. I have the training. This is what I'm supposed to be doing. I have the commitment. And there are plenty more like me out there. If you haven't heard, we have satellite TV in our tepees now.
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The Chairman: Mr. Adams, please.
Mr. Adams (Peterborough) : Thank you, Mr. Chairman.
Mr. Good Striker, on the TEK point and your point about following the Convention on Biological Diversity, I've been giving this a little thought. I think there's a distinct change here. If this is draft legislation and TEK is mentioned in draft legislation, that surely is a step forward. It's mentioned as one of the criteria that will result in the design of the COSEWIC group. I won't go into the various areas of science you mention, but it mentions TEK, and it goes on from TEK to community knowledge, which is actually geographical, basic knowledge, for example, for the treaty areas you mentioned. Don't you think that's a step forward?
Mr. Good Striker: Yes, we are moving ahead. We understand Canada and the world are moving ahead with TEK. All we're saying about TEK and the Convention on Biological Diversity is let us clarify the protocol that should be followed here. As I said, nobody came to Alberta when they signed this convention. Personally, I am really ticked off about that, because I'm talking with my elder here, who is giving me information I have to earn. I'm willing to share it in a positive way for the world globally, but nobody has come to the treaty nations as a whole and asked us to share that. Somebody had the gall to do this. I think his name was Brian.
Mr. Adams: The fact that it's in as one of the criteria of COSEWIC I think will affect the design of COSEWIC. You went on into the other thing, about the different ecosystems, which is another strategy for putting together a COSEWIC group. Let's say there were still 28. First of all, I would say if you have wording that would suggest that approach, we would be glad to have it. Secondly, though, I would say I think we should have it left so we can design COSEWIC in various ways.
You gave one strategy. Bear in mind that the strategy already has TEK and community knowledge built into it. I would suggest to you another would be to base the list of people on COSEWIC on the species at risk or nearly at risk. In other words, there might be one ecosystem that is in relatively good shape, so for a period of years, thank God, it would be under-represented on this list.
Do you see what I mean? I think there are other strategies. Once you've built in the basic nature of COSEWIC, there are other strategies for actually coming up with the lists, which would be renewed over the years.
Mr. Good Striker: That's what I tried to bring up in the document. Western science has a list, but traditional science also has a list. We were never approached to say what our concern is concerning the endangered species. What do we know about an endangered plant or a species that exists out there? That's what we're trying to say about COSEWIC and traditional knowledge on the bigger scale, and about having those six people for six ecosystems. Look at another perspective here, because we don't know what's missing right now. We could be turning over the cure for cancer in Alberta's prairies right now, with the last grass plants. We don't know; but we know we have plants out there, plants we use, being affected. We know animals out there are being affected.
Mr. Adams: I just suggest to you that here's a piece of draft legislation that actually contains at least the seeds of some of the things you're talking about. One of my colleagues mentioned the other clause that actually specifically mentions treaty rights and first nations. Again, I recognize from your point of view it's believably slow progress, but it is written in various clauses. We've had commentary in first nations across the country, including in the north, on those different clauses, and if there are parts we can strengthen I would urge you to....
I was going to ask you about the boundaries of the treaty lands you described. Obviously they're interprovincial. Do they go across the U.S. border, or is that a stupid thing to say?
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Mr. Good Striker: Just Treaty 7 where we're from. It encompasses the northern Blackfeet and the southern Blackfeet.
Mr. Adams: In my view, this legislation is weak in its coverage in regard to the species we're concerned about because, of course, they don't recognize either treaty boundaries or political boundaries. My hope is that we get something through, and that then it would reflect the start of - and the expression has been used - mirror legislation for the provinces, for example, and perhaps for the states in the United States. Mirror legislation could appear, which, by the way, would naturally be adapted to the very particular local circumstances. I think your discussion of the treaty area fits with that.
Again, one of the drawbacks in a fairly weak federal safety net and this mirror legislation is that there will always be boundaries. If there were an organization that could cross some of those boundaries, I think it would be very useful. And I think it would be feasible under this legislation, Mr. Good Striker.
Mr. Good Striker: It's funny that you should bring that up. On the issue of Treaty 7 boundaries overlapping with the United States, as an organization we put forward a proposal to the North American fund for environmental cooperation, a fund under the North American environmental cooperation agreement. This proposal is called the EDGE project. EDGE means ``environmental development of grassroots elders''. The proposal is an educational tool for the Alberta and northern Montana elders about what NAFTA is in relationship to traditional trade goods of plants, animal parts, feathers and intellectual property rights.
We've been shot down twice by the North American fund for environmental cooperation, but we're going to go to them again. We believe this is a good proposal and it does have the treaty area overlap.
NAFTA is a beautiful document for free trade. Again, aboriginal people and treaty rights are mentioned specifically, but when it comes to handing out project dollars for commonsensical approaches to NAFTA it doesn't apply to us. And this is a sad case for Canada and the United States.
But the treaty overlap is very simple, because basically, if you look at the treaty areas on a map, they are ecosystems in themselves.
Mr. Adams: Thank you very much.
Thank you, Mr. Chairman.
The Chairman: Thank you.
Were you also, to use your terminology, ``shot down'' by the environment commission in Montreal? Is that the one you're referring to?
Mr. Good Striker: Yes. I would say that they refused the proposal. The first time they wrote back - and this was really astounding to me - they said the project wasn't grassroots enough. I don't know how much more grassroots you can get than talking with 200 or 300 elders of native descent in Alberta and Montana. The second time they said it wasn't community based, but you know that a reserve is a community unto itself. It might be spread out over a few miles, but it is a community, a community based in a treaty area.
We're going to submit the proposal again and reword it to make it meet their criteria, but we're not going to back down. We're going to go to the embassy of Mexico in Ottawa and to the embassy of the United States and ask them to endorse this, because it is a transboundary thing of feathers, plants and intellectual property rights.
The Chairman: Thank you.
Mr. Taylor is next, followed by the chair.
Elder Good Striker: Excuse me.
The Chairman: Oh, sorry.
Elder Good Striker: In 1892, the U.S. border between the Blackfeet and Montana Blackfeet was extended to four miles. That started in 1892 and was completed in 1893. It runs from our southeast border to Kootenay lake and Waterton Lakes. It's a four-mile border. That's our claim there, 160 square miles, which was a hundred-year lease to the Cardston district, the Cardston municipality. That's the only place I've seen where there's a four-mile border. We avoided taking horses and things back and forth across the border so they widened it. Our people went in and their people came this way trading horses. That's the cause of that four-mile border - Blackfeet and Bloods.
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The Chairman: Thank you.
Mr. Taylor, please, followed by the chair.
Mr. Taylor (The Battlefords - Meadow Lake): Thank you very much.
I have two questions. The first one is by way of just discussing examples, because I think that as you said, the committee and governments get hung up on things that are written down and examples that help us to understand principles.
This talk about cross-border U.S. treaty borders immediately brought to my mind the example of the eagle and the way in which aboriginal people have recognized the endangered status of the eagle and have worked with others over the years, despite the fact that the eagle is so important in aboriginal culture, and eagle parts, particularly the feathers, are very important in ceremonies. Perhaps you could briefly give us an understanding of the relationship between governments in protecting the eagle and its value.
More importantly, my question that came out of discussions earlier has to do with the conflicting values in Indian country relating to economic development and the preservation of traditional values. I come from the Treaty 6 area. I work very closely with the chiefs on the Saskatchewan side of Treaty 6 and am quite familiar with the forest practices on the west side of the province, particularly with the creation of an elders council that deals with harvesting activity.
I was also quite impressed with the resources council that was set up in the Yukon, where the first nations people in particular are working on the industrial side of things and on the harvesting and use of natural resources, thereby bringing together aboriginal and non-aboriginal people.
I'm not as familiar with Alberta and I'm just trying to get a concept of whether we should have a good listening process and whether we should define practical ways of dealing with protecting the species through management plans. I'm just trying to get a handle on how well equipped the chiefs in Alberta are as far as working to develop management plans once the endangered species has been defined, once areas have been identified and now that we're now working on achieving the plan.
What position are the Alberta chiefs in right now considering the conflict that can exist over ranching, oil and gas, and the economic needs that the chiefs have also identified to ensure the survival and success of the people?
Mr. Good Striker: First, concerning eagles, I'm glad you brought that up. That is a prime example of traditional environmental knowledge at work here in the province of Alberta.
Our organization had the honour of assisting a recovery centre for birds of prey to release two eagles in honour of Ralph Klein and Minister Irwin at a naming ceremony on the Blood reserve during the summer. But six months later this same facility that nurses birds back to health was dictated to by the Alberta environment department, primarily because they have probably four eagles on site right now that they've had for a number of years which cannot be released into the environment, primarily because they have one wing. They wouldn't survive. So the policy that exists in the Alberta environment department is to euthanize these birds and create space for other birds to come into that facility. The operator of this facility approached us and asked us if we had any options on how they could deal with the situation. We came up with two options in a matter of minutes.
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The process, if those birds were to be euthanized, would go something like this. They would approach the bird. They would inject it. The bird would die. The bird would be brought to a lab, given an autopsy, dissected, frozen, and then its animal parts would be distributed to people on a list of 50 names. By the time that bird got to the community, maybe six or seven months later, his body would be in ten different places. He's been shown total disrespect as a creation of God.
What's the alternative? The alternative is to set up a facility on a reserve that acts as a hospice for these birds. These birds moult every year, so there would be a continuous supply of feathers.
Let's take another situation where the bird had to be put down. We have resources here that can do a ceremony that shows utmost respect for the bird, entirely. We ask the Creator to ask this bird to take its life in an honourable way where its animal parts can be transferred directly. When it's deceased, at that instant his animal parts will be passed directly to the people who will use it for ceremonial purposes. So his body will continue living in the communities, through ceremony, for the greater environment as a whole on a continuing basis. This has been happening for thousands of years in that exact same fashion. It's a lot better than western scientific terms, where this animal is butchered.
This currently is under review with the Alberta environment ministry with regard to Indians and their relatives concerning birds that are non-releasable. We're asking the Alberta government to be proactive, to look at the Convention on Biological Diversity, to adhere to what Canada wants to do, to act responsibly and to listen to its constituents.
On forestry and the management of natural resources, the Alberta chiefs are doing a fine job, I think. We have the situation with the Little Red River Cree co-management deal with Alberta Forest Products. They're developing a management plan that has been in place for four or five years. They're adhering to it, but it's the outside multinational corporations that are affecting the operations. They're making the Indians look bad, because the Indians have a deal. The Indians have the right over their treaty area to extract the natural resources at a rate that is applicable to allowable cuts. But again, the dollar is there, and that dollar dictates what is going to happen in terms of mitigation of those areas.
That's where the real travesty is being felt by the communities up there. They know they're going to get the revenues from forest activities, and they see the price they're paying every day by huge areas of clear-cutting. They're going to have to adapt just as we have adapted to agricultural practices down south. But pockets of biodiversity exist that should be protected and enhanced.
That's one thing I wanted to ask this committee specifically. I know of Indian reserves, I know of national parks and I know of DND facilities. What else is there for federal lands?
The Chairman: Not much.
Mr. Good Striker: Okay. That's why the NRTA is really important to us.
On the approach of the Alberta chiefs concerning the endangered species - and this is what I handed out to you - ATNES came before the chiefs in November. We asked them to convene a summit specific to all environmental activities. This had never been done - for the chiefs of Alberta to have a summit on one specific subject. Health, child welfare, justice, education - they've all tried to have a specific summit. We got to the table and we told them, you have to deal with this, there is no walking away. So they decided to convene a summit on the environment. We're targeting October or November 1997, prior to the federal government's draft position on sustainable development, because sustainable development encompasses everything.
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We're looking at all the issues, which we have outlined in a draft document concerning goals and objectives of ATNES. First up is a sustainable development strategy. Second is the Canadian Environmental Assessment Act; third, the Canadian Environmental Protection Act; fourth, the Canadian Endangered Species Protection Act; fifth, the DIAND waste management strategy; sixth, Health Canada matters; seventh, Agriculture Canada practices; eighth, the Canadian Forest Service; ninth, the Navigable Waters Protection Act; tenth, Transport Canada; eleventh, Environment Canada and biodiversity; twelfth, the Canadian Council of Ministers of the Environment; thirteenth, Indian Act amendments on natural resources; fourteenth, traditional environmental knowledge; and fifteenth, the chiefs summit on the environment.
So we are looking at collective action concerning federal initiatives. We'll be looking at collective action concerning provincial initiatives. We'll be looking at collective action looking at international initiatives. We're looking at the future here, and we're going to act as a group. The Alberta Treaty Nations Environment Secretariat is small, but we are informed, and the chiefs have faith in us.
We're not going away. We are not going to change with the government. We have always existed in our communities, through people such as the person on my left and through the children who aren't here yet. We are not going anywhere. And we have an opportunity to work together.
The Chairman: One brief question from the chair. Mr. Good Striker, in your brief this morning, under item 2, you told us about standards that already exist in the treaty nations of Alberta. Are these standards passed on by word of mouth or are they available in print?
The second question flows from item 4, when you tell us about notification of species. Could you elaborate on that theme and explain what is the practice behind that notification?
Mr. Good Striker: I'm sorry. About the second question, on item 4....
The Chairman: In item 4 there is a reference to your notification of species that have not been identified by western science.
Mr. Good Striker: On community knowledge and standards that have always existed in the treaty areas, we have an oral culture, but we also have a culture by example. So we know who the people are, and you would know who the people are. If you went into a reserve and you drove up to somebody's house and his house was in order, his yard was cleaned, his corrals were well kept, his animals were fed, that would be an understanding of the environment of a standard that has been passed on from generation to generation. If you're going to keep it, take care of it. If you're going to take something, put something back.
These standards have always been there. Of course we could develop them into print, but that's where it has to be defined by the chiefs of Alberta - in their communities. Do they want to do that? Do they want to establish a protocol concerning traditional environmental knowledge in relation to western standards that exist for waste disposal, for harvesting, for anything.
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On the notification of species, persons such as Rufus here are the ones who will tell us a species is being affected by an industrial plant. A prime example is Swan Hills. You're now seeing the effects on species downwind from this facility, species that have been affected by the plant's operation for the last eight years. Elders will not gather plants in that downwind area any more, because of the contamination that has occurred.
How can you justify that? Would you say a western scientist has taken his tests and said the DNA count and the gene count are still good in the plant? The medicinal value is different, from the Indian point of view.
The guy giving the prescription is not somebody you can see. The guy giving the treatment is something you can see, the plant is the medicine, but what makes it work is the Creator's component, our helpers out there. That might be hard to understand from a scientific point of view, but it exists. It has always existed, and it works. These helpers are telling us this stuff is no good any more, because you have whatever went in that place coming back out as a minute hash that has been ingested by the plant and all species around, or it has gone into the food chain. Those plants don't work any more.
So the information exists out there, but we need help. If you want to know about it, we need help, because we can't do it all ourselves. We have enough problems.
The Chairman: Thank you.
I think it would be fair for me to interpret the thoughts and feelings of my colleagues by saying we thank you for your appearance today, and also for the appearance by the elder. We thank him again for the prayer and we thank you for your brief. We look forward perhaps to further exchanges of thoughts with you in the months ahead.
Mr. Good Striker: On behalf of the treaty nations of Alberta, the chiefs, the elders, the children, and generations to come, I would like to thank you for coming to Alberta to hear our submission. We will continue to be out there and we hope to work with you in a more positive way.
Elder Good Striker: I would like to tell you that we have been weakened very badly since the treaties. Every treaty that occurred had a denomination. That is where we started to fail in our ways. We were very close to the bird world, the animal world. Our songs, our hymns, come from those species. Even today we are trying to pick them up, but we are very weak, because we have been weakened by the denominations, your teachings about how to pray.
We were told the Creator created all things; you must respect His creation and live in harmony with His creation. That was the teaching: respect. Fathers and mothers always taught their kids loving, caring, sharing, and understanding. Today is an understanding. Maybe we're here to try to make you understand.
Since the treaty of 1877 in my area there have been Catholics and Anglicans. There are two denominations to every treaty. I came from Treaty 8 just last week. I was there for five days, in Ontario. I heard these talked about too: how weak we have been since the white man tried to civilize us.
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I've had trouble crossing over at the borders. I ding all the time. I have a wedding ring because my denomination says I'm married and I have to wear that ring. That dings every time I go through. People are standing behind me, waiting. Especially in Great Falls, Montana, I have trouble with that lady in uniform. She tells me to take my belt off, and I told this man, the second time she asked me to take my belt off I was hoping that my pants would fall down. I told this guy, give us another 20 years; we will be civilized when we start hijacking planes. I know we're a risk for feathers and tobacco, but when you start hijacking planes and breaking into banks and killing for money, then you're civilized. We have a long way to go yet.
That is why I'm saying we are very weak. We have been weakened. We really are still very close to nature. For example, just a few days ago, the morning after I came back, I said to my wife, let's go to Lethbridge. We were just 150 yards from the house, at the corner of my barn. There was a coyote right on that road and it wasn't scared. The only time they're not scared is when they have sickness. He was right on the road. We followed him. I didn't want to run over him. For three-quarters of a mile he was going either way, and then he jumped for the ditch. I told my wife, you'd better start praying because he's telling us something.
The first person we met when we got out of the car was an elderly lady. We shook hands, and I always joke with her. The next day my wife and I and a nephew got into the car and went to Calgary East for business and came back late. The next morning - she's a bus driver - she came home and said, you know what, that lady we shook hands with died.
That's what that coyote was trying to tell us, that there was something going on. Let's pray it doesn't come our way, because my grandfather told me if a coyote ever comes around you and runs beside you, it's telling you something. It's bad news. So are the owls.
We are very close to that world. We get our messages through it. You can tell by storms coming in, things that are going to happen. You see odd things.
We go by nature. We're very close to it yet, but we're pretty far away from being disturbed in the mind, in our ways of praying. We have our ways of praying. We don't own any land; we're part of this land. That's what we were told: You're part of Canada; you're a part of Mother Earth; you don't own the land.
That's all I have to say.
The Chairman: Thank you.
The meeting will adjourn for a few minutes.
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The Chairman: We apologize for the delay.
Our next group of witnesses is headed by Dr. Schindler, a professor of ecology at the University of Alberta.
Welcome to the committee. Would you please introduce your colleagues and the members of your delegation before you start.
Professor David Schindler (Department of Biological Sciences, University of Alberta): Thank you, Mr. Caccia, and other members of the committee, for inviting us here today. We're here because we have some very important scientific and legal fundamentals that we believe are deficient in the legislation.
I've brought with me two other professional ecologists and a specialist in environmental law to cover some of those issues.
First we will hear from Dr. Susan Hannon, a professor of ecology at the University of Alberta. She is a specialist in habitat fragmentation and has worked on the provincial lands of Alberta. She has a number of concerns.
Following that, Mr. John Kansas, from the University of Calgary, is habitat coordinator for the Eastern Slopes Grizzly Bear Project. He will talk about concerns that the grizzly bear will not be protected, even within our national parks, by this legislation.
Dr. Ian Rounthwaite, associate dean of law at the University of Calgary, will talk about legal issues.
As for me, I'm quite happy to go last. Much of what I have to say could be covered in questions rather than in the presentation. I've already been a member of the task force on endangered species, appointed by Sheila Copps. I've attended both the national and the Alberta provincial public meetings on it, and I've read the results of other meetings. With over 200 scientists I was co-author of a letter to the minister in late 1995, expressing our scientific concerns about the lack of habitat specificity, and protection of habitat, in the draft legislation. Co-signing that letter with me were a number of Nobel Prize winners, members of the Order of Canada and fellows of the Royal Society. So these are not greenies but professional ecologists all.
On top of that, within the national parks I was part of an expert team of cumulative effects specialists who assembled the data on habitat and species issues in the national parks for the Banff-Bow Valley task force. I think it's fair to say that even in a national park, where the mandate is protection - and habitat protection and species protection should be number one - this is not happening, and I see nothing in this legislation that is going to improve that.
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Habitat is the key. According to the conference in Saskatoon last week, our forests are disappearing at the rate of about 2% per year. This is not being cut, this is out-and-out disappearance. It's a combination of being turned into agricultural land and deforested land that has been unsuccessfully reforested.
The national parks look like large areas, but only 5% of the national parks have habitat that's suitable for many of the animals. The rest are, simply put, rock and ice.
With that background, I would like to call on Dr. Hannon to start our group's presentation.
Professor Susan Hannon (Professor of Ecology, University of Alberta): I would like to thank you for taking the time to listen to us today.
My brief today is going to cover six main points. First of all, I feel the habitats of endangered species are not adequately protected by this bill. The bill provides protection only for species on federal land, and many endangered and threatened species exist in ecoregions or natural regions that are not federal lands.
In addition, large-scale development is occurring on crown lands that are under provincial jurisdiction, and Alberta's endangered species legislation does not adequately protect the critical habitat of endangered species.
Transboundary species are not protected under federal legislation and will not receive adequate protection under this bill.
The bill provides for discretionary and not mandatory enforcement. Recovery plans for endangered species must be enshrined in law and must be mandatory if they're going to be effective.
Finally, sufficient funds have to be allocated by law to the recovery of endangered species, and personnel adequate to participate in research on and recovery of these species.
I'll now go through these points one by one. First of all, habitats and endangered species are not adequately protected by this bill. Habitats are not clearly defined in the bill. We need a clear definition. I'm going to provide you with one here.
What is habitat? If you look in any wildlife management or conservation textbook, you get a definition very similar to what I'm giving here. Essentially, habitat is a type of biological community in which an individual or a population lives. Suitable habitat provides all the requirements of a population for a season - so either a wintering habitat or a breeding habitat - or for the year-round activities of that population or individual, for resident species that stay in the same place.
Habitat requirements include food, water, cover, and security features. By ``security features'' I mean such things as escape terrain for animals, for example, so they can avoid predation. These all are features that are needed for the survival and reproductive success of individuals and the population.
Under the prohibition clause of the legislation as it is written now, the bill states that:
No person shall damage or destroy the residence of an individual of a listed endangered or threatened species.
In the definition clause of the bill, ``residence'' is defined as:
- a specific dwelling place, such as a den, nest or other similar area habitually occupied by an
individual during all or part of its life cycle.
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This prohibition would be akin to someone saying to you, all right, we're not going to destroy your house; we can go out and destroy your neighbourhood and the grocery store and the gas station and everything else, but as long as we don't destroy your house we're fine. Obviously this is not going to keep endangered species in the system.
For example, you could cut down a forest and leave the one nest tree of a broadwing hawk standing in a small clump of trees, but that's not going to ensure that broadwing hawk is going to stay in the forest, because all the other components of its habitat have been destroyed. We know from research that species that require forests disappear when you cut down their habitat.
So this has to be strengthened so there are prohibitions against destroying critical habitat in its fullest sense.
The leading cause of species extinction in the world and in North America is the loss of habitat. During the settlement of North America by Europeans there were some very dramatic extinctions of several species. Some species were pushed pretty close to extinction. I think we have all heard the stories about the loss of the passenger pigeon and the great auk and so on, and about how the plains bison were almost pushed to extinction. Many of these early cases of species extinction in North America were caused by over-exploitation, by market hunting and uncontrolled slaughter of these species. The governments of the day reacted to these over-exploitations by enacting legislation that set hunting regulations and so on and outlawed market hunting.
Today the greatest cause of species loss is habitat loss. That's certainly the case worldwide, if you look at lists of some of the factors leading to extinction of species. Here you see all species in the world that have been pushed to extinction for which a cause can be attributed. You can see that the leading cause is habitat alteration.
A number of other things have contributed to the endangerment of species. In North America we have controls for many of these other factors that lead to endangerment of species. In North America it has been estimated that approximately 80% of species have become endangered because of direct loss of habitat. These are figures from worldwide extinctions, but in North America 80% of the extinctions are being caused by habitat loss.
Many of us like to point our fingers to the south and say, well, a lot of the species in the world are being lost because of the destruction of the rainforest and so on, but we have to look at our own backyard. Dr. Schindler just mentioned permanent loss of forested habitats in North America. We're experiencing habitat loss at a very high rate.
Secondly, the bill provides for protection only for species on federal lands. Many endangered and threatened species exist in natural regions that are not protected by federal land.
What I have here in this overhead shows the twenty natural sub-regions in Alberta. I'm showing you data here just for Alberta. These natural sub-regions are based on geology, land forms, soil types, hydrology, and vegetation communities. These are distinct natural regions within the province of Alberta. Within these you're going to have biological communities of plants and animals that are native to these areas.
If we look at the distribution of federal lands - and all I have plotted here is the military reserves and national parks - you can see the federal lands that are protected in Alberta are quite a low percentage of the province and do not represent all the ecoregions in this province. If you tot them up, of the twenty natural regions in Alberta, only portions of nine are actually protected by federal lands.
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Next I will show you the distribution of threatened species and endangered species from the COSEWIC list of April 1996. Here are the threatened species. I want you to note here that the blue lines are basically the distributions of these species within Alberta. You can see that a number of them are concentrated in the southern area in some of the prairie ecoregions.
I'll now show you the same thing for endangered species, plants and animals from the COSEWIC list that are endangered within Alberta. Again, you can see a cluster of species down here in southern Alberta in the grassland ecosystems and in areas that have very little protection by federal lands. Most of this land is in private hands. So these systems have very high numbers of endangered species on them.
Less than a quarter of plant species will receive any protection under the act as currently written, not to mention countless numbers of invertebrate species that are associated with those plants. We tend not to concentrate on invertebrates, but obviously a number of insects, some of which may not even be described yet, are associated with plants within these ecoregions.
Protecting representative areas of each ecoregion will go a long way toward protecting the species that depend on these habitats and will alleviate much of the need for last-ditch recovery efforts for endangered species. So if we protect the habitat, then we're not going to have to go running around on red alert trying to protect the last individuals of a species from going extinct. We have to protect species from becoming threatened and endangered and we need strong protected areas legislation coupled with a strong endangered species bill. It is estimated that only 40% of endangered species will be protected on federal lands in Canada. We need strong federal legislation that covers provincial and private lands.
Third, there is large-scale development occurring on crown lands under provincial jurisdiction in Alberta. I've already discussed the southern part of Alberta, where much of the land is in private hands and has obviously been converted into agricultural land. If we look to the north of the province, I show here forest management agreements. These are agreements that have been signed by the Province of Alberta with forest management companies to manage timber on these areas.
In addition to this, extensive oil and gas development is going on throughout the province. Thousands of kilometres of seismic lines, for example, are put in on an annual basis in this province. So you can see a very large percentage of the northern part of our province, then, is tied up in forest management agreements. These areas are going to be harvested for timber. A large part of the northern portion of this province is under these agreements. There is very little federal land in these areas for the protection of endangered species.
I'd like to show you quickly three slides that demonstrate some of the cumulative effects of development in forested lands. What I'm showing you here is a sequence of shots of the same area. The first is an aerial photograph of an area in Drayton Valley in Alberta. The first picture was taken in 1950. This area here is forested land. You can see there is no development on this land.
The next shot is in 1963. Already you can see here a honeycomb of seismic lines, of oil wells and roads going to these oil wells.
The next shot is in 1985, where we have continued oil and gas development and also forestry operations coming here in the form of clear-cuts and so on. You can see that there is very little of the original forested habitat left.
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This is a dramatic example, but as we speak, this is happening on a daily basis throughout Alberta. You get this cumulative conversion of land from a number of different resource sectors. This is not managed on a provincial basis in an integrated way, so you get a left hand that doesn't know what the right hand is doing. The result is situations like this, where habitat is lost. This sort of fragmentation is very detrimental to many species that require large home ranges of unbroken habitat, such as wolves and grizzly bears - and we'll be hearing a little more about this in a minute.
Alberta does not have an endangered species act per se, but can designate endangered species under provisions in our wildlife act. There are penalties for killing or trafficking in endangered species, and there are prohibitions against disturbing nest or den sites of endangered species. However, there are no prohibitions against destroying other elements of critical habitat. So again, the shortcomings in the legislation here are very similar to what I see as the shortcomings in the federal legislation. Therefore, cumulative habitat losses on these lands are not addressed. We need strong federal-provincial agreements on endangered species protection so that this sort of cumulative land conversion is prevented.
My fourth point is that transboundary species are not protected under federal legislation and will not receive adequate protection under this bill. There are a number of species that have large home range requirements; they roam over vast areas. For example, grizzly bears, birds of prey and the like are going to move outside of federal lands, and they're going to move across national and provincial boundaries.
There are other species, such as migratory birds of prey, that are not protected under current legislation. The Migratory Birds Convention Act does not protect birds of prey that are migratory. Birds of prey are raptors. Because they're at the top of the food chain, they often suffer from bioaccumulation of toxins that are used to combat agricultural pests on these agricultural areas in the southern part of our province. Many have very large home range requirements, and many are sensitive to this kind of habitat fragmentation that I just spoke about. Prairie species like the burrowing owl live mainly on private lands, where their fate is in the hands of private land owners.
Even species currently protected under legislation are not being protected due to lack of enforcement of this legislation. For example, the Migratory Birds Convention Act states that no person can disturb, destroy or take a nest of a migratory bird. However, this is rarely, if ever, enforced. In addition, habitat in the ecological sense that I talked to you about at the beginning of my brief is not protected for migratory species outside of federal lands. Only the federal government can ensure protection of transboundary species. The bill must extend protection of habitat to transboundary species and migratory birds.
My fifth point is that the bill provides for discretionary, and not mandatory, enforcement. Endangered and threatened species must be recognized and managed by biologists, and the decisions to implement recovery plans must be made by scientists and not by politicians. Weak wording in the bill, such as ``the Minister may'' or ``COSEWIC may'', must be replaced by strong wording such as ``the Minister must'' do whatever. Otherwise, legislation will be useless in the face of the continuing development of our wild lands.
We've seen many examples of resource battles where environmentalists are pitted against local people who are concerned about job loss. If we have strong legislation, all planned development projects will have to meet environmental requirements, including the preservation of endangered species, before the project is given the go-ahead by the government. Thus, I feel all projects that may affect the habitat of endangered species must undergo environmental assessment before proceeding.
There's always this expectation that's generated within a community if there's a tacit approval of a development before an environmental assessment is done. If this tacit approval is given, there's an expectation raised in the community for numbers of jobs, economic development, and so on. These procedures, these environmental assessments, must be front-end loaded so that we're not giving approval to projects and then doing a post hoc assessment of whether or not they're going to affect endangered species.
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Finally, there have to be funds allocated in the legislation to be put towards the development of recovery plans and to do the necessary research to determine whether or not species are endangered. There must also be the personnel to do this. If, for example, the situation is left as it is with provincial government having to deal with provincial endangered species, we in Alberta have two non-game biologists who are looking after all the endangered species in this province. That's clearly not enough personnel to do the sorts of research, writing, and carrying out of recovery plans in the province.
Thank you for your attention.
The Chairman: Thank you.
Who would like to submit...?
Prof. Schindler: Mr. Chairman, would you like to hear from all of us on this and then go to questions?
Our next speaker will be John Kansas, who will be talking about the dilemma of protecting the grizzly bear both inside and outside our national park system.
The Chairman: I had some information for our interveners, and I forgot to mention it. At ten minutes, I will give you a little signal that you have another five.
Mr. John L. Kansas (Habitat Coordinator, Eastern Slopes Grizzly Bear Project, University of Calgary): Thank you.
Thanks for the opportunity to be here today. I've supplied the committee with copies of a letter that summarizes my concerns. It's dated January 29, and it has a bear on it - the Eastern Slopes Grizzly Bear Project logo.
I am making this presentation as the habitat coordinator of the Eastern Slopes Grizzly Bear Project, but more importantly, I think I'm here before the group as a registered professional biologist under the Professional & Occupational Associations Registration Act of Alberta. I've made my living since the late 1970s in Alberta on habitat issues, specifically with wildlife. I work with industry, government and the public, and I try to provide a fair use of science as it influences land use decisions. I have a number of overheads and slides I'm going to go through. What I would ask the committee members to do is....
I'll just briefly go over the letter. My concerns are very similar to Sue's concerns, and I would add that if you had twenty or thirty experienced biologists around the table who deal with endangered species, their concerns would be identical to this as well. I'm positive of that, so I'm not going to....
The Chairman: I can assure you that we have heard them also, in other regions.
Mr. Kansas: I'm sure you have, so I'm not going to go over them again, except in that I'm going to use an example. It's the unique example of the grizzly bear in the Banff area, and I ask that you think about those concerns as you watch the presentation, as I'm sure you will.
I'll just go up and do some overheads now, and I'm going to try to be conscious about not just talking about a single species here, because that's a danger that we fall into with endangered species.
There have been some major changes in ecosystem management, in the way a biologist does his job, in the last three or four years. They really have been significant, as they influence endangered species management, and they started with the Green Plan. This whole idea of ecological integrity and biodiversity protection has really become just huge in the last few years. I can get copies of these overheads done for you, but in a word, there's been so much more sophistication in our work in the last few years that it's been mind-boggling.
I've put this definition up because dealing with endangered species is more than just the species, as you've heard. There are issues around integrity that deal with ecosystem functioning and, of course, habitat that are fundamental to the preservation of endangered species. These are definitions that are accepted by scientists around the world.
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I don't expect you to read this, except for the highlighted points. In the protection of biodiversity we're dealing with multiple levels of diversity, as you've heard before; big regional ecosystems, as Sue put up; local systems, such as a particular plant community. The only thing we're dealing with here, with endangered species, is one of three broad levels of protection under contemporary biological diversity protection.
This overhead comes from the United States President's Council on Environmental Quality, which guides the EIA process in the States. You can see there that there's a much broader element or approach to looking at biodiversity than single species - all the mention of different ecosystems, communities, genetic diversity, etc. These are followed very closely by law in the United States. I think Ian is going to speak to some of that.
Just a comment on disturbance levels. This was back in 1985. Those big broad regions Sue talked about...you can see in the prairie regions up to 90% to 95% surface disturbance. As you move into the higher elevation areas, where it's colder and less productive, you tend to get less surface disturbance. People don't want to live up in the sub-alpine of the national parks. They want to play there, but they can't live there. So there's a real difference in productivity and climate that affects how humans use the landscape and how they affect wildlife. It's very important to note.
In Alberta, whenever there's a major development along the Rocky Mountains or foothills it inevitably comes down to this animal. The cumulative effects on this animal seem to be the most sensitive sort of lightning rod for controversy.
The issues around grizzly bear conservation are real. They are not manufactured. We used to have grizzly bears all the way down into California. You can see the changes that have occurred since then. The worry in Canada is that we're going to have the same thing happen as in the United States.
Why is the grizzly bear a problem? It's just the way they are. They have a very low reproductive rate. They have large home ranges, so they get into a lot of trouble. They are an animal typical in the way it's problematic around transboundary issues. They have very low population densities and find it hard to find mates to breed with.
Here are the kinds of things that happen to bears out there. Because they have such large home ranges, you could have many different industry impacts, things such as fire suppression not allowing natural fires to take place, grazing. Hunting has been a real problem with grizzly bears. Logging can be beneficial, but the roads and the access and the bullets that come from hunters take away from the habitat gained from logging.
Roads are the biggest problem for grizzly bears. Secure habitat without roads is where we find our animals.
And people. You can love the animals to death. If you fill the back country with people, then the bears won't be there.
Our study area for the Eastern Slopes Grizzly Bear Project is outlined by where these animals are taking us. Some 25 bears have been radio-collared, and they have taken us into a huge area, around 15,000 square kilometres.
Mr. Forseth: Just 25 bears?
Mr. Kansas: It's 25 to 30, somewhere in there. It fluctuates by year. There are more bears than that in the population, probably triple that, but we can capture only a certain amount of them.
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We're trying to look at things like how good is the habitat for bears, where is the low human use and high habitat quality, which is the ultimate dilemma, and trying to link grizzly bears as a surrogate for overall biodiversity protection, because they use such big landscapes.
We're trying to map very large land areas through a committee. We have funding sources from oil and gas groups, forest companies, and government groups. Even the Alberta Cattle Commission has been funding us. They all have a concern because they don't understand how they can get into an area and develop it while keeping the bears. So they recognize the need, and we're doing the job for them.
Using the grizzly bear as a surrogate for biodiversity as a planning tool is very effective because they use land at multiple levels, at regional levels, plant community levels, and they are sensitive to genetic problems as well.
Here in this slide are some of the female home ranges that we have of radio-collared bears, up and down the east slope in the Banff area and the Kananaskis country area. These are just female bears, which are the most important aspect of the population because they're breeders.
We were happily going about our business and doing our work as scientists do, and trying to enjoy ourselves. Then the Banff-Bow Valley study came up and we were asked to set aside our research, which was only two or three years in, and talk to this issue of cumulative effects and help the minister with that.
So we did that in a number of ways. We used three different techniques to look at cumulative impacts on bears in Banff National Park and in the surrounding areas around Banff. Each of those techniques showed there were some serious problems.
I think one of the issues in the existing legislation is that the loss of habitat isn't the only thing that endangers wildlife. There can be very good quality habitat in an area but too much disturbance by noise and roads and so on, and these animals will not use that habitat. So effectively the habitat is lost, even though it's there. This is what we call effective habitat loss, which we're trying to show here.
We looked at large areas of habitat quality and then we imposed the human use, through the roads and the campgrounds and so on, that occurred in the area. We found that a certain percentage of the area was taken away from use by grizzly bears.
The magical number in the States, if they look at a particular landscape and they see that a certain amount of it has been taken away by roads and disturbance and so on, is around 70%. Once you lose about 70% of your effective habitat in an area, the bears seem to leave the area.
We found our numbers were largely around that 70% in the Banff National Park area. If you compare that to the Yellowstone situation, they have a little bit more effective habitat quality than we have, even though...when you consider that the grizzly bear is highly endangered in the States. Yet in Banff this sneaked up on us.
We thought we were fine in Banff, and as scientists we had some inkling that there was a problem, but once we started to run these more sophisticated models we found there was indeed a real problem in that area, and it was all compared against good science that was done in the States.
The other thing we tried to do was a bit of a different approach. We didn't look at habitat quality as much as where the secure areas were. Where were the roadless areas that bears use? The research that has been done in North America is showing that if around 60% of a given area is secure with respect to not having too many roads and so on, a bear will use the area. If you have too many roads and the secure core areas become really small, the bear leaves. That doesn't mean the habitat is gone; it just means the effective habitat is gone.
So we went back to older people in Banff, who had lived there for years, and we asked them what the world looked like back in 1950 with respect to roads up trails, and trails up valleys and so on. They gave us that information, and we mapped that. We looked at the amount of land that was secure in 1950 for bears, based on their foraging requirements, and mapped it.
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If you look at the red, those are the areas that humans were using in the park in the 1950s. Green indicates the areas that were secure for bears. One thing to keep in mind is that the white areas show the areas of rock and ice. A lot of Banff National Park and a lot of the Rocky Mountain front is just rock. Surprisingly, 50% of it is rock. You don't realize that when you're out on the ground, because you're not walking up in the rocks. So just keep your eye on the red and the green.
Next, we looked at 1995, at the current land use levels. You can see that the red is increasing and the green is decreasing. We projected to 2050 the amount of core area that would be available to bears, and came up with this value. Then we looked at, in different watersheds, how much core security was still available, and found that the outlook was not good for bears. We would literally have no grizzly bears by the year 2050 in Banff National Park.
The next slide indicates some specialized stuff I'm not going to spend a lot of time on. The bottom line is a few fragment areas, as Sue talks about...and a bear can't move to breed with another bear and transfer the good and the bad side of its genetic materials to that bear, you end up with isolation of genetic material. We can obtain this information through hair on bait stations - very sophisticated techniques.
Next, we found that our genetic diversity in the Banff area was extremely low compared with other areas. Couple this with the fact that we're finding that none of our radio-collared female bears are crossing the Trans-Canada. None of them move. There's traffic all night long, and I guess they're too afraid to cross. They don't feel secure. So you get this problem of the genetics of the animal being blocked by barriers like that.
The next slide shows how we have established a correlation between human impact and loss of genetic diversity. The loss of genetic diversity could be something that affects this animal 100 years from now, when a disease epidemic comes through and they don't have the proper genetic materials to deal with it. We can't really say exactly how it's affecting them now. It's not an immediate problem, but it's an indicator of a bigger problem, which is human land use and fragmentation.
This slide shows a male grizzly bear from the Banff area. Only one bear of fifteen routinely crosses the Trans-Canada.
The next slide indicates that we tried to do some modelling techniques from the States to identify right now where the permeable areas are along the Bow corridor from Banff through to Radium, based on the amount of existing human use and the quality of the habitat to hide bears. Look at the little yellow diamonds, and the cross-hatched area. Those are the only areas that we felt were really suitable for bears to cross right now.
We're dealing with trying to mitigate through structures like this. People have seen these funny-looking structures that are starting to grow out of the land and along the Trans-Canada. That's an actual overpass, not an underpass, for bears. We don't know whether they will cross these areas, but we're hoping to monitor the bears. If they do cross this overpass, which is 50 metres wide, then we can hope for some genetic transfer back and forth. I don't hold a lot of hope for that type of thing. For example, how does a bear find that little crossing point?
This is my last slide. It's a really good example of the issues around grizzly bears. You can see all the rock and ice up high. They don't eat rock. They don't eat ice. Down below there's water and there's less snow in the winter. There are more big game animals such as elk and so on, which grizzly bears do eat. They mainly eat vegetation but they will eat animals as well.
So there's more diversity. Look at the diversity along the river valley. Up high, the bears use them seasonally, but they can't survive up just one valley.
Our models show that without a doubt the best-quality habitat is in that 3% of the montane ecoregion in the parks. The rest of the 97% is variably used by bears, but I don't think they could survive over the long term without this type of habitat in the valley bottoms. That's really one of the biggest issues for bears.
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The Chairman: Thank you.
We'll move on to the next presenter, Mr. Rounthwaite.
Professor Ian Rounthewaite (Associate Dean of Law, University of Calgary): Thank you, Mr. Chairman and members of the committee.
I too have provided you with a brief. Unfortunately I missed my plane out this morning and was stuck in traffic, so you may not have received my brief yet, but I have given it to the secretary of the committee. I hope you will have an opportunity to read it. Given the time constraints we have, it will not be possible for me to go through all the points I try to make in my brief. Rather, what I will try to do is highlight those points that I think most directly strike at the heart of what endangered species protection laws should be and then indicate to you where in my opinion there are deficiencies in the legislation that could prove to be fatal to the preservation of wildlife species in Canada.
I would like to make essentially four major comments. First I would like to make a number of preliminary comments. Then I will move on to draw your attention to some of the declarations of principle that are contained in the preamble to Bill C-65. I hope you have a copy of the bill with you. On occasion, for clarity it may be necessary for me to direct your attention to the specific wording of Bill C-65 itself. There are a number of points I would like to make about the preamble, points I think the committee should be aware of.
The third matter is that I would like to address in detail the application provisions of the bill, particularly on how the proposed act may or may not apply to a species' habitat and particularly to indicate to you how the bill would apply to wildlife species and their habitats on provincial and private lands.
Finally, I would like to direct the committee's attention to the extent to which this particular bill permits and encourages public involvement and public participation in the decision-making process for the preservation of a species in Canada.
The Chairman: Professor Rounthwaite, keep in mind that while we're very grateful that you are taking us through the bill, the members of this committee have been going through this bill several times. We hope you will give us additional insights.
Prof. Rounthwaite: I will try to do that, sir, indeed.
First, then, a few preliminary comments. My preliminary comments are ones I had deleted from my brief because it was my understanding it was not a topic this committee was particularly interested in. That is the question of the jurisdiction of the federal government to enact strong and effective endangered species legislation and to apply that legislation not only to federal lands but also to provincial and private lands.
I have deleted that portion from my brief, but I would be remiss if I did not remind the committee that in your, in my opinion, very thorough and excellent review of the proposed amendments to CEPA, which you published in your report It's About Our Health!, on pollution prevention, you canvassed thoroughly the federal government's constitutional jurisdiction to protect the environment under the distribution of powers in the Constitution, looking at the enumerated heads of power as well as POGG. I would simply like to indicate to you that in my opinion the federal government does indeed have the constitutional jurisdiction to enact species protection legislation and to apply that legislation to provincial lands and private lands.
However, in the preamble - and this moves me to my second point - I cannot help but notice the glaring absence of a declaration by the federal government that it is recognized that species protection is of national concern. It is a very marked absence from the declaration of principles contained in the preamble.
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There are a number of other statements in the preamble that I think the committee should be aware of, and I would like to make a point that I think perhaps other witnesses may not have made.
First, the preamble recognizes that wildlife is part of Canada's national heritage and as such is an integral part of our national identity. This is the first instance of an important principle stated in the preamble that has not been carried through into the substantive provisions of the remainder of Bill C-65.
If wildlife is indeed part of our natural heritage, in order to carry that through into the substantive provisions of the act we should then include definitions that give guidance to decision-makers as to what things they must take into account in trying to determine the importance of a particular species to our national identity and to our national heritage.
For example, clause 49 is the provision of the act that is the triggering mechanism for the Canadian Environmental Assessment Act. As Susan pointed out, environmental assessments must be done, and must be done at the outset, in order to identify what the potential adverse impacts may be, not only on a wildlife species, but on the critical habitat of that wildlife species.
This bill could easily be amended to include a statement that as part of the environmental assessment process a federal agency must attempt to identify the importance and the place of an individual species and its critical habitat as part of what it means to be a Canadian.
Americans talk about certain species of wildlife symbolizing what it means to be American. Canadians do the same thing. There are certain species of wildlife that to most Canadians symbolize what it means to be a Canadian and are important symbolic representations of what our country is all about.
I think it would be incumbent on a decision-maker to identify what those linkages are between a particular species that may be adversely impacted and the importance of that species to our identity as Canadians. Nothing, though, is required either under clause 49 of Bill C-65 or under the Canadian Environmental Assessment Act as it is currently worded.
The second declaration in the preamble is the one that when I first saw the legal text of this bill made me jump up and down with some measure of excitement. I think it's a wonderful recognition of principle. It is the recognition that wildlife and wildlife species have value in and of themselves. It is a recognition that wildlife species have intrinsic value.
It then goes on to indicate that Canadians appreciate wildlife for a long list of very worthwhile reasons.
By the way, I note that in the French text the word ``appreciation'' is used, whereas in the English text the word ``value'' is used. I would prefer to have Canadians appreciating wildlife rather than valuing wildlife.
In any case, that statement is the statement of an ethical principle. It is a recognition by the federal government that not only human interests have value, but that non-human interests also have inherent value.
As an ethicist, I think that statement extends the range of moral subjects that must be taken into consideration beyond human beings, and it extends considerations as a moral subject to wildlife.
Ethical decision-making then requires that whenever an ethical agent must make a decision that may result in the overriding of the interest of other moral subjects, the decision-maker must give and must provide not only economic and human interests as justifications for overriding those interests of the moral subject, but must give ethical justifications as to why human interests will be allowed to override the interests of wildlife as a moral subject.
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Unfortunately, again, I see nowhere in the legal text of Bill C-65 where decision-makers are encouraged or even required to provide those kinds of moral justifications when a decision is made that will allow human interests to override the interests of wildlife. I would like to see that declaration in the preamble carried out throughout the legal text. It can be done in a number of ways.
Third, the preamble recognizes the importance of biological diversity and incorporates in the preamble the precautionary principle that when faced with scientific uncertainty, the precautionary principle should prevail. This is a particularly important part of the preamble because it relates to and ties into the proposed text in the current draft of the Canadian Environmental Protection Act, 1997, which in my brief I call CEPA-97.
There is only, though, one provision in Bill C-65 where the legal text recognizes that biodiversity must be considered. That is in subclause 38(5). In subclause 38(5), the responsible minister, when considering the content of a recovery plan, must consider biological diversity and must consider an ecosystem approach as part of preserving biological diversity. I cannot help but notice, though, that unlike CEPA-97, where biological diversity is defined, where ecological integrity is defined, and where a number of other absolutely essential scientific and ecological terms are defined, none of those terms are found in the definition section of Bill C-65.
I would like to see a definition of habitat added to the definition section of Bill C-65. As a matter of legislative drafting, one of the purposes for including definitions is to clarify terms that recur frequently throughout the legislation. One term that occurs frequently throughout Bill C-65 is the word ``habitat''. But we have no definition of habitat in the definition section, we have no definition of ecosystem in the definition section, and we have no definition of biological diversity in the definition section. In my view, all of these absences are weaknesses. Including all of them would help to carry forward these absolutely essential principles into the legal text of the bill.
Finally, although the preamble recognizes the importance of Canadians taking part in preserving and protecting species in Canada, and although the preamble recognizes the role that Canadians should play in protecting endangered species in Canada, in my opinion - and I will get to it in a minute - the role of the public in this piece of legislation is extremely limited. The legal text does not in my opinion satisfy the federal government's commitment that it made in the preamble recognizing the role of the public. I have suggestions for strengthening that public participation.
Moving on, then, to the applicability of the bill, let me direct your attention to clause 3 of the legal text of Bill C-65. Clause 3 is the application section of CESPA and stipulates that the provisions of CESPA are to apply to federal lands. Federal lands are defined as lands that belong to Her Majesty in right of Canada or lands that Her Majesty in right of Canada has the power to dispose of.
Susan put up a very interesting slide showing the distribution of federal lands in Alberta and the location of endangered and threatened species with respect to those federal lands. Included in those federal lands were two military bases, the Suffield military range and the Cold Lake range.
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Now, I'm not sure about this, and I apologize, I should have checked, but it is my understanding that many military bases and military ranges in this country are not actually on land the federal government owns - i.e., land that belongs to the federal government - nor are they on land the federal government has power to dispose of. Rather, many military installations and bases in this country are on provincial crown land that has been leased to the federal government.
Under the current definition of ``federal land'', leased land would not be land the federal government has power to dispose of, nor is it land that belongs to the federal government, and therefore it would not be covered by this legislation as ``federal land'' is defined. So I would like to see the definition of ``federal land'' expanded to include not only land that belongs to the federal government or that the federal government can dispose of, but land the federal government leases. It would clarify the application of this very important bill to all military lands, whether they are owned outright by the federal Crown or they are leased from the provincial Crown.
When I speak of federal lands, federal lands have become known in current environmental language as ``the federal house''. When I talk about the federal house, though, I talk about more than just federal lands; I talk about how federal environmental legislation applying to federal lands fits in within the entire framework of federal legislation, regulations, and policies as a complete and comprehensive environmental package. So when I speak of the federal house, I'm speaking more broadly than simply of federal lands.
However, subclause 3(2) exempts the application of clauses 30, 31, and 32, clause 42 regulations, and emergency orders from applying on any provincial lands unless a threatened or endangered species is found on federal land. I think Susan's overhead showed a number of endangered and threatened species on provincial lands are not found on federal lands.
The application provisions of subclauses 3(1) and 3(2) are the first indication in the legal text of the bill why this bill has not taken an ecosystem approach to protecting wildlife species. Wildlife species do not determine their habitat based on constitutional jurisdictional divisions, nor do they take their habitat based on political or even legal decisions. They take their habitat based on the health of that habitat within a healthy ecosystem and ecoregion. Subclauses 3(1) and 3(2) exempt and remove the heart of this legislation from much of the habitat and much of the ecosystem that endangered and threatened species will inhabit.
There is another point to notice. The application of clause 30, 31, and 32, regulations under clause 42, and emergency orders relates only to endangered and threatened species. They do not apply to vulnerable species. Clause 31 prohibits harming or killing endangered and threatened species. It does not apply to vulnerable species. So too clause 32 protects the nests of endangered and threatened species. It does not apply to vulnerable species. I'm not an ecologist, but rudimentary common sense tells me a vulnerable species is elevated to the status of being endangered or threatened by people killing it or disturbing its nest or residence and we should be protecting vulnerable species from those kinds of activities so it won't become necessary for COSEWIC to recommend to the minister that a species be elevated from the status of ``vulnerable'' to the status of ``threatened'' or ``endangered''.
It also makes economic sense to protect species at the ``vulnerable'' stage, where we can do so in a cost-efficient manner, rather than having to take more drastic measures and therefore greater economic cost to protect them when they are threatened or endangered.
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So clause 31 doesn't apply. What does that mean? It means that in a province where there are not laws protecting endangered or threatened species, you can kill an endangered or threatened species with impunity, provided that you do so on crown land and provided that the species is not one that is found on federal land.
Clause 32 does not apply. What does that mean? Again, it means you may destroy the residence or nest of a non-aquatic or non-migratory bird species on provincial or private land if that species is not found on federal land.
Clause 42 does not apply, and removing clause 42 from the applicability of this bill gives me great concern. Clause 42 is the provision of the act that enables a responsible minister to enact regulations for the purposes of implementing a recovery plan. A recovery plan must be prepared within one year of a species being listed as endangered or threatened or extirpated. However, the content of that recovery plan, having been arrived at by the minister, is then implemented under this bill through the enactment of ministerial regulations.
By excluding clause 42 from the application of this act, it means that where there is an extirpated, endangered or threatened species on provincial land that is not found on federal land, the responsible minister cannot enact regulations to implement a recovery plan, and any regulations that are passed to implement a recovery plan can only be applied on federal land. If part of the habitat or range of that species extends into provincial crown lands, then those implementing regulations cannot be enforced on provincial land.
There are a number of other things I would like to say, if I can very quickly talk about public participation, Mr. Chairman, and particularly, I would like to address the endangered species protection action.
The endangered species protection action that is found in clause 60 is extremely confusing to me because, for the life of me, I can't see why anyone or any lawyer would ever advise a client to bring an endangered species protection action. First of all, in order to bring an endangered species protection action, a member of the public must request that an investigation take place by the responsible minister. In order to request an investigation under clause 56, there must have been an alleged offence.
So a member of the public can request the minister to conduct an investigation of an alleged offence. Anything that happens, though, on provincial crown lands is not an offence under this act, so the only offences that can take place are breaches of clauses 31 and 32 on federal lands. If that occurs, an investigation is requested and the minister then can do a number of things: will investigate - in fact, must investigate, and must provide a report to the person who investigated, giving reasons as to what was done and whether or not the investigation was suspended or concluded. At any time the matter can be referred to the Attorney General for further proceedings.
My advice to any client here would be that if an offence takes place under Bill C-65 and that offence also amounts to an offence under the proposed wording of CEPA-97, to request an investigation under CEPA-97, not under this particular bill.
Equally, if the offence gives rise to the ability to bring an endangered species protection action or an environmental protection action under CEPA-97, my advice to a client would be to bring the action under CEPA and not under this bill. The reason is because this bill provides virtually no public involvement other than involvement in an environmental assessment if clause 49 of this act is triggered. Any activity on provincial crown lands is not an offence. The minister doesn't have to investigate. Investigation is a precondition of launching an endangered species protection action. In the absence of an offence, it can't be brought. Even if an offence can be brought, the bill requires that this be proved. So the plaintiff must first prove an offence before the court can grant any relief. That is extremely expensive and extremely onerous.
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In trying to establish an offence, although the bill adopts biodiversity in the precautionary principle we have nothing in clauses 60 through to 75, dealing with an endangered species protection action, that changes the civil standard of proof, the civil burden of proof, or anything that directs the court that scientific uncertainty on the balance of probabilities is not required to succeed in an endangered species protection action. I would like to see the language changed so that the court may provide a remedy if it is likely that there has been an offence under the act and if the offence will cause harm, rather than significant harm, to an endangered species.
I'm sorry, Mr. Chairman, but I think I'm out of time.
The Chairman: Have you completed your review? Do you have anything else?
Prof. Rounthwaite: I haven't dealt with the details, Mr. Chairman, but they're in my brief.
The Chairman: Is there anything left in the fuming ruins of Bill C-65 that you would like to further demolish?
Prof. Rounthwaite: The final thing I would like to say is that the method by which the court is empowered to provide a remedy in an endangered species protection action has a number of flaws. The court can make a declaration, the court can issue interlocutory orders - and those interlocutory orders can be of either a positive or a negative order - and the court can also order negotiations, negotiations towards a plan to implement corrective measures to, I assume, remove the harm, or the significant harm, that may have been caused by the offence.
If the court orders negotiation, then the court can also order the parties to report back to the court. Under our system of civil procedure, though, eventually the court is going to make a final order. Under our system of civil procedure in the common-law provinces, once the court makes a final order the court loses its jurisdiction over the parties. The court's role, in effect, is functus.
Where the court orders negotiation of a plan of corrective measures and orders the parties to report back, every judge who makes such an order should also issue an interlocutory order in order to maintain jurisdiction over the parties so that the court can supervise the implementation of those corrective measures.
I assume that the legislative intent of Parliament here is to provide for some form of judicial oversight of the remedy in a successful endangered species protection action. If counsel or the court, though, does not make an interlocutory order, the court may lose jurisdiction to supervise the implementation of corrective measures. I would like to see the bill amended to give the court a continuing jurisdiction until such time as the corrective measures have been implemented to the satisfaction of the court.
The provisions dealing with an interlocutory order, though, I don't think give a continuing supervisory role under the contempt powers that those interlocutory orders carry with them. They are limited by the wording of paragraphs 60(3)(b) and (c). I don't think they would cover the ongoing supervision Parliament seems to contemplate here.
Finally, I would question whether or not a court of competent jurisdiction has the expertise, the resources or the capability, for that matter, to supervise what is essentially a matter for ecological science and scientific knowledge.
Those are essentially my submissions. Thank you.
The Chairman: Thank you, Mr. Rounthwaite.
Dr. Schindler, the floor is yours.
Prof. Schindler: Mr. Chairman, I don't have any visuals and I have only a couple of points I'd like to make.
First, I have a couple of minor follow-up points to John's and Susan's presentations from the standpoint of a scientist who deals at the ecosystem level.
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One of the reasons I've asked John to do the grizzly bear presentation is that protection of such large visible species, I think, is very important for another reason. That is, it has been documented in the course of this Banff-Bow Valley study that by protecting the habitat of grizzly bears there was habitat for approximately 100 other known and valued smaller species with smaller ranges that would be automatically protected.
On top of that, of course, it's well known that a lot of our invertebrate species in Canada are not known and those invisible species would be automatically protected by protecting these larger ranges.
I think there's a tendency for people to forget about our species here when they look at the destruction of tropical species. Every day in the paper we see items about the thousands of species that are being eliminated by deforestation and other activities in the tropics. I think there's one very important point that's forgotten here. The same ecosystem processes that require thousands or even millions of species at those latitudes are performed, in some cases, by a few hundred species in an ecosystem in Canada. We have a much more impoverished fauna and flora. We have many fewer specialist species, meaning that the few species that are here have to perform several functions. We don't fully understand how they're able to do this, but it's a fact that they do. Therefore, I propose that by removing one or two key species from an ecosystem here, we may be jeopardizing the functioning of those systems in a way that would require the removal of thousands of species in the tropics.
With that, I'd like to move to my main bone of contention with what's going on, and that is that having been involved in the process at several stages, I don't think the process by which this legislation was developed and reviewed by the public reflects what really happened.
First, the task force had two representatives from academia, several from environmental groups, and several from industry. At every meeting we would hammer out a draft that had strong habitat-protective measures in it, and every time that was translated by our appointed chairman - not chosen chairman - those statements would disappear. Similarly, ``the minister must'' type of wording would become ``the minister may''. Finally we decided to bypass our chairman, and the task force members met on their own - the industry, the academic, and the environmental members - and put the words back in. But the words disappeared again at a level that I can't tell you about and don't know about.
Second, I participated in the national and one provincial public hearing on this document and I've read the other provincial documents. That process and the public feeling reflected in those reports would exactly parallel what we had in the task force. People in this country want strong endangered species legislation that strongly protects habitats. If you were to have a referendum on this, I would estimate it would be in the order of 80% at least, the exception being a few vested large business interests.
Finally, the scientific side of this has been told before. Over 200 of us sent a letter to the minister in late 1995, including some of the most eminent scientists in this country, and again the ecological deficiencies of this bill have not been corrected. Something very strange has happened here. Whatever it is, it is not democratic.
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I have one other minor suggestion. I know there is a lot of concern about provincial harmonization of this bill. I suspect you could get around the problem of having each province individually proposing its own enforcement and its own rules by some sort of cross-country committee, perhaps with a federal chair but with representation by the provinces, with the specific objective of making this legislation uniform and uniformly enforced across the country.
Ian has given you some examples of how this legislation fits very poorly with FEARO and CEPA. I would like to give you one additional example of how it's mysterious to me how this would dovetail with the National Parks Act.
In the Bow Valley study that John spoke about, there was a very extensive review of all of the ecological data for the Bow Valley and Banff National Park. It was done by the best Canadian experts and was reviewed by the best international experts. It formed the basis for the several hundred recommendations that the task force made to the minister. This was handed to an implementation panel and to Parks Canada, and last Friday and Saturday they announced their response.
Their response is simply totally inadequate. It will not protect the grizzly bear; it will not even protect many of the other species within the national park. I feel I must ask how this proposed legislation would change that situation. This new management plan for the parks, I'm told, will be implemented by April of this year. The decisions that have been made, incredibly by people whose mandate is to protect these ecosystems, have flown in the face of strong evidence and have set up a plan not to protect them.
The basis for the science in this is much stronger and much more complete than anything we see in COSEWIC recovery plans for provincial lands. Certainly, the lack of protection of endangered species is a disgrace. But when we cannot even protect them in designated national parks, whose primary mandate this is, I think it's particularly disgraceful.
I'll end there.
Our group would be happy to answer any questions you might have.
The Chairman: We'll be glad to do that, and we'll start right away with Mr. Forseth, Madam Kraft Sloan, Mr. Adams, and Madam Payne. Please go ahead.
Mr. Forseth: Thank you, Mr. Chairman.
I first wanted to refer to some of the overheads that we saw from Susan Hannon. There was a map presented of the forest management agreements. I was wondering if you could supply additional information.
Do these agreements not encompass environmental considerations and protection of species? We know the problem of the commons, and it has been argued that really the best way to protect species and to protect the ecosystem is to give particular ownership and responsibility for land to a particular company or agency. Since that is their backyard they are going to tend it, rather than the problem of the commons. The implication was made that perhaps these agreements were directly detrimental to the ecosystem in those areas. I'd like you to explain that.
Second, you provided some aerial slides from 1950 and forward of a valley area, and I'd like you to comment. Are you implying that no development should have happened? What should have happened? I take it you are implying that there has been significant environmental degradation in those areas. Given that there has been considerable social intrusion by mankind, what are we going to do with it now? What are your suggestions? Perhaps you would just zero in on the purpose of showing those particular slides.
In summary, I'm asking you, given that it's really not feasible to remove large areas of land from economic activity, how this bill can be modified to protect habitat. Are you advocating that we lock up huge areas of the country, or is there some way to protect habitat while at the same time protecting farmers, ranchers or jobs and the productivity that comes from forest and mining activities?
Prof. Hannon: I hope I can remember all your questions. You might have to refresh my memory if I'm missing some of them.
In terms of forestry development in northern Alberta, and I showed you the forest management agreement areas, those agreements are negotiated on a company-by-company basis with the provincial government. Essentially the timber supply is allocated based on forestry inventory. So the forest itself is not managed, it's the timber that's managed. The idea is that you have a sustained yield of timber flowing from these areas.
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In some of the forest management agreements wildlife concerns have been presented and also enshrined in these agreements. Most of these tend to be concerned with game species such as moose. For example, there are restrictions on line-of-sight across cut-blocks and widths of cut-block shapes related to some of those game species.
Some companies.... You're asking about the commons. Certainly yes, in some sense negotiating agreements with companies should ensure they maintain a sustainable supply of timber. It does not necessarily guarantee they are going to be looking out for a sustainable level of biodiversity in the area, since their major concern is to extract timber from the area.
Does that answer your first question?
Mr. Forseth: A variety of agreements have been developed over time, and perhaps the later agreements look more carefully at more of an ecosystem approach, one of managing the whole landscape. We now have the example of the Forest Practices Code in British Columbia.
Prof. Hannon: Yes, we are moving towards that in Alberta. An Alberta conservation strategy was developed, and it involved environmentalists and other stakeholders, forestry companies and so on. It has essentially laid out the ground rules for developing a more ecologically sustainable forestry in Alberta.
Certainly a number of companies in Alberta have been very proactive in realizing that biodiversity concerns by the public should be met. I think some of this is motivated by concerns in Europe and so on about the sustainability of our forestry practices and the idea of becoming green-certified in order to stay in business; it's going to be a cost of staying in business. So definitely some companies are moving towards looking at more of an ecosystem approach.
Mr. Forseth: About those overhead slides of the river valley, what was the real purpose of showing that? What are the messages we should get out of that?
Prof. Hannon: The message there was that if we're going to manage habitat, we have to be very concerned about cumulative effects of different land management practices. For example, the difficulty in these forest management agreement areas is it's not just forestry that's occurring in those areas but oil and gas development, gravel extraction, and other economic developments. The problem is that the forest management agreements, for example, don't take into account extraction of wood by, say, seismic activities by oil and gas companies.
What I'm saying is we have to take an integrated approach to habitat management so we are looking at the cumulative impacts of different types of extraction activities in these areas. John mentioned what some of these other cumulative impacts could be. That was obviously an extreme example, but I have a study area in northern Alberta that is about 10 kilometres by 10 kilometres. I've been working on it since 1992 and every year there is more and more development: pipelines going through, seismic activities, gravel extraction, and so on.
We have to have an integrated approach. Otherwise things just get taken out piecemeal. If we're going to be looking at the critical habitats of these species, we have to have an integrated approach and look at all of the resource extraction activities in an area.
Mr. Forseth: That brings me to the latter part of my question, directing that to the bill. How could the bill be improved and still provide the ongoing balance so we have the economic activity to be able to pay for the remediation plans we want to do to preserve species in the first place? When you look at a tree, you can see it as something to worship, or the tree will provide medicare and education and everything else that pays for the universities for you to develop your expertise to come to the table today.
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So it's a cycle. We're now moving into a new area of legislation, and we have to look particularly at the wording so that it does deliver what we hope to deliver.
Prof. Hannon: Yes. I'm not suggesting here that we have to cease all economic activities on our lands. The idea is to ensure that these activities are done in a sustainable way in terms of the whole ecosystem, not just in terms of whatever we happen to be extracting.
Certainly I mention in my brief that I think this bill has to ensure critical habitats are maintained, and some of these things can be done prior to approving development projects simply by avoiding particular areas that might be critical habitat - wintering habitats, for example, for a particular species.
There are a number of mitigation techniques available that you can front-end-load in terms of development projects before they're allowed to go ahead. Perhaps sensitive areas could be avoided. There could be buffer areas set up around them or something.
In terms of other species, yes, we may have to lock up some of these habitats, as you put it. There may have to be areas where we say we want to preserve this particular species that's only found in this one location. Well, maybe we're going to have to withdraw that small area from development into the future.
I'm not suggesting that we have to cease economic activity, but there are ways in which remediation or mitigation can be built into plans and that these environmental assessments have to be done before the projects are approved.
The Chairman: I take it there are some other comments.
Mr. Forseth: I'm hoping we can direct it specifically to improve the wording of the bill.
Prof. Rounthwaite: It may be of assistance to you with respect to the first part of your question, Mr. Forseth, that much of the forest management agreements, as well as other private interests in Alberta, have been granted under the provisions of the Public Lands Amendment Act, 1982. For example, large amounts of land have been allocated to the cattle industry under grazing leases granted under the Public Lands Amendment Act, 1982.
A recent decision of the Alberta Court of Appeal, called OH Ranch Ltd. v. Patton, has decided that a grazing lease gives the holder of that grazing lease property entitlements that are equivalent to or very close to private absolute property interests for the purposes of managing the grazing leases. There is currently nothing, though, under the Public Lands Amendment Act, 1982, to require the holder of those property entitlements - and a forest management agreement is a property entitlement. There is currently nothing to require that in managing the resource that has been allocated under the act they take into account species.
What I would suggest, though, is that the committee may want to look at the wording of clause 7 of the bill, dealing with the ability of the minister to enter into administrative agreements, and might wish to include provisions in there requiring the minister to provide notice and comment, which is required under clause 9 of CEPA-97 but not under this bill, and require the minister to include in an administrative agreement provisions at the provincial level that will take into account your concerns, that will balance economic interests with the interests of the species.
The other thing I would suggest is the committee might want to consider adding to this bill an equivalency agreement provision, which the bill does not have, particularly given the importance of the national accord and federal-provincial cooperation. Perhaps there should be a provision similar to CEPA-97, clause 10 added to this bill to allow the minister to enter into equivalency agreements with the province so that the federal government can negotiate with the provincial ministers an appropriate balance for species preservation, habitat protection, and economic interests.
Mr. Kansas: I have one brief comment. With the grizzly bear, we're so fortunate that we have millions of dollars of research that has been done in the States because of the profile of the animal. But I think there is a lot of uncertainty around thresholds, on how much land use can there be, how much fragmentation, how much of that slide that you saw can you have before you lose certain species - and certain ones will drop out at different times. If there weren't that uncertainty and we knew what those thresholds were, you could plan land use and economics around those thresholds, or something below them, but right now I think the scientific uncertainty is a big problem. I don't know how to deal with it, but it's time more than anything.
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Prof. Schindler: I'm going to make a comment that's not directed specifically at this legislation, but I know your panel is going to CEPA next week, and somewhere in that dovetail I think it reflects that a lot of what we've seen on the landscape is simply not smart planning.
To give a specific example, we have a large pulp mill in this province in Grande Prairie, on a very small river. Had it been sited a little further downstream, where its effluent would be diluted to the extent that it's non-toxic and doesn't consume the oxygen on the main stem of the Peace River, it would have had no impact. As it is, it has had a very severe impact.
I could give you other examples that if we were to look at the likely patterns of movement of important species on the landscape - and I think Susan would confirm this - and incorporate those early into things such as timber and other activity plans, we could go a long way toward ameliorating the effects of industrial development.
I think that's one thing that is still missing from CEPA and in the application of CEPA, in EIAs and things like that. That may be a more appropriate forum in which to try to fix it, but it's something we certainly need to fix.
The Chairman: Professor, can I come back to you in a second round, please? The list is getting long here.
Madam Kraft Sloan, please.
Mrs. Kraft Sloan: Thanks very much.
[Technical Difficulty - Editor]
We've been talking about cumulative effects and advanced review, these types of things. This is a bit of an aside, but it fits in with the overall context in which this legislation will be operating. I wonder if someone could comment on the proposed changes to the Fisheries Act in subsection 35(2), which has been a useful trigger for the Canadian Environmental Assessment Act, particularly around some of the smaller projects.
When we start talking about cumulative effects, if we look only at very large projects then this cumulative effects problem of smaller projects becomes even a greater issue. Perhaps someone would like to comment on the proposed changes to subsection 35(2).
Prof. Schindler: I'm not familiar with the proposed changes, but I've been disturbed by the application of the Fisheries Act. I think we had a precedent recently where in the case of BHP, the company's EIA clearly showed that habitat would be destroyed and that no compensatory habitat could be developed to invoke the no-net-loss policy. So the company has gotten away with simply handing over a little bit of money for general fisheries work.
This is again proposed in the Cheviot Mine development right outside Jasper National Park, where the mine is not only in the only remaining prime spring bear habitat but also is destroying the spawning and rearing habitat of the bulltrout, a listed species, and the Athabasca-strain rainbow, a strain found only on the eastern slopes and already eliminated in Jasper National Park by other human activity.
Their proposal for these riverine fisheries is simply to fill a few mine pits with water and stock them with brook trout and bulltrout. From what I have heard - and I haven't actually seen this - Fisheries is likely to approve this. I'm beginning to wonder if we have any effective legislation in this country. It seems as though none of it is beyond the reach of being able to be bought.
Mrs. Kraft Sloan: Subsection 35(2) is being proposed to be devolved to the provinces...which is freshwater fish.
You talked about including ``vulnerable'' as a category of inclusion...and ``extirpated'' is not included under the prohibitions section.
I wonder if you think this should be amended to include extirpated species under the prohibitions section.
Prof. Rounthwaite: I think it should, absolutely. As written now, the bill includes only extirpated species with respect to the preparation of a recovery plan. It does not include, though, in clause 42, the ability of the minister to make regulations and to implement a recovery plan for extirpated species. Clause 42 is limited to only regulations for endangered and threatened species. So I would like to see extirpated species added.
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In my brief, I give one example. It is the example of the efforts that are being made to reintroduce the prairie swift fox to the prairie environment in Alberta and Saskatchewan. That's taking place in Cochrane, near Calgary. In order for those efforts to be successful, the swift fox would have to be released onto federal lands in order for the act to apply. There is very little prairie habitat that is now federal land in Alberta that would be suitable for the swift fox. The only federal lands I'm aware of are military lands, and of course the committee knows that military lands can be exempted from the application of the act under certain circumstances.
I also find it rather ironic that one would release an extirpated species back into the wild in the hopes of being able to downgrade it to endangered or threatened and put it on a military practice range, but, nonetheless, that could indeed happen.
If you'd like me to address subsection 35(2), just very briefly, I will. I would not like to see the federal government turn over the enforcement and administrative provisions of the freshwater fishery to the provinces, particularly to this province, partly for just practical reasons. We've had dramatic and significant budget cuts in the environment department here. It does not have the resources to effectively enforce the Fisheries Act.
If one looks at the number of charges that have been brought in Alberta for violation of the Fisheries Act, they are few and far between. In this province we do not have a good history of enforcement of federal legislation.
The Chairman: Unfortunately, Professor Rounthwaite, that has already happened, except for British Columbia and the Atlantic provinces.
Can I move on to the next person or do you have one more question?
Mrs. Kraft Sloan: I think most of us around this table agree with most of the recommendations that you've been putting forward. There is certainly a lot of sympathy here. However, we heard witnesses from the Yukon yesterday who indicated to us that we will be seeing a constitutional challenge if we go ahead with this legislation.
You're probably fully aware of some of the concerns that private landowners have and that some of the provinces have. While from a scientific point of view your recommendations are very sound and those of us who aren't scientists - and you'll have to forgive me, Dr. Schindler - those of us who are only greenies around this table, are very supportive - and I'm glad to see that the science is supporting us in this - we still have the issues of constitutional challenges and private landowners' concerns.
I think many members around this table have very clearly said that this will not be effective legislation unless we have cooperation. It's not what to do, but it's giving us some help in how to do what we should do. If any one would like to comment on that, I'd appreciate it.
Prof. Schindler: I'd like to comment briefly. I don't live in the city. I'm very seldom at the university. I live on a farm. My neighbours are farmers. I actually live near Drayton Valley, near the example that Susan showed.
I think it's fair to say that most of my farmer neighbours would like to see some minimal legislation. Some of them actually already exceed what would be required for that legislation. They look at species on the land and if they think the species are endangered, they sometimes do some misguided things, like feed them in the winter and so forth. But there's also a bad element, like in any other occupation, including university professors: if there's no bottom line, they're going to do whatever they can; they'll bulldoze the forests into the river if that's the most convenient thing. I can show you examples of that near home.
I think we need the strong legislation to underpin this. If landowners can do better, let them do better, but don't let them do worse. I think this is strongly reflected in the public process that I mentioned, both at the national level and at the provincial level.
Mrs. Kraft Sloan: I'd also like to mention that I don't think people on private lands should have to subsidize other Canadians in the sense of preserving endangered species on their land. There have to be economic incentives built into recovery plans to assist private landowners, if indeed they need to set aside parts of their land, or whatever. I think that's one idea that I don't see present in the legislation now.
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Mr. Kansas: I think the key is regional land use planning that is somehow linked with strong legislation that forces planning. Planning will reduce the uncertainties to some extent, and that will then create a feeling of cooperation.
A lot of the problem is uncertainty, and that's what creates the competition between land users. I've seen a lot of cooperation increase once we gain simple information that was just a matter of using the technologies that we have now and of coming up with some understanding of ecosystems.
Mrs. Kraft Sloan: Thank you.
The Chairman: Thank you.
We now have Mr. Adams, followed by Madam Payne, and, if no one else adds their name, the chairman.
Mr. Adams: Thank you, Mr. Chair.
First of all, I'd like to suggest that we make a particular point of having the transcript of Professor Rounthwaite's presentation, as well as his paper, when we get to clause-by-clause. Also, as far as is humanly possible, I think his comments should be included in our chart of amendments. I know it's not going to be easy, because his comments tend to.... The great value is that they link various parts of the legislation, but I think we really should make a very special point of having that material when we get to clause-by-clause.
I want to thank you, as the others have, for being here. You're a wonderful balance of the law and science. And Dave, I know of your concerns about the process. We're near the end of the three-year process. In fact, if we don't move soon, nothing will happen. That's really where we are. So given the nature of the four of you, I'd like to give you an opportunity to talk further about what we can do about habitat protection and also to say something around the definition of ``species'', because of your particular expertise.
On the habitat side of it, just start with the definition in here and work it through the rest of the legislation. There's this business of ``residence'' and ``habitat'', and we've had suggestions, such as put in ``critical habitat''. But to give you an example, we've also had the recommendation that we do not use ``critical habitat'' because in practice it's not possible to determine which part of a species' habitat is not critical. So someone said ``core habitat'' and someone else said something else. Bearing in mind that we're getting close to where something is going to be written down, we need something for that.
Mr. Chair, in light of the discussions today, we need something that gets at one of your most basic points, this question of fragmentation of habitat. We've imagined that there is a forest and there is 80% of the forest left, but in fact the holes are in such a place that the 80% isn't really valuable.
I wonder if any or all of you could talk about that, first of all.
Prof. Schindler: Maybe I can start with one proposal. That is, we do have one example that you've seen - the one that John showed - in which we have a very precise definition for the grizzly bear in terms of what is critical, what is marginal, and what is not habitat. If we were to focus on species such as that, I think we would protect a lot of the rest, and there are a fair number of species for which we know those criteria and others that we will soon know well. I don't think it's quite as big a stumbling block as some people might think if we use this umbrella species concept.
Would either of you like to...?
Mr. Kansas: I agree completely with that. I'm not a lawyer, so I don't know how to say it exactly, but one definition of habitat says that a species needs food, cover, and secure space. I think that security side of things is what you're talking about with core. Every animal requires a certain amount of security, and I think if that's not in the legislation, it loses the whole idea of effective habitat loss, etc., which is significant.
That's all I have for now.
Mr. Adams: This is very useful. It's going on the record and we will know what you have said. But again, we're into the sort of phrasing.... I've given you the example - and by the way, it was a biologist who said to use ``habitat'' and not ``critical habitat'' - and I wonder if, legally, you could address that. Are we better to go with a general theme or are we better to go with something that uses some of these words, like ``shelter'' and so on?
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Prof. Rounthwaite: Given the tradition of the decision-making process in Canada, and given our tradition of providing for a measure of discretion so that each case can be judged on its own merits and that some flexibility can be built into the decision-making process, I would opt for a more general approach that uses ``habitat'' rather than ``critical habitat''. At the same time, though, you could build in a number of safeguards in the substantive provision of the text to ensure that there is some measure of accountability and that there is some measure of public oversight and review if the public is of the view that a habitat decision is a questionable decision.
In subclause 38(5), which specifies the minimum content of a recovery plan, safeguards could be built into that section to address habitat specifically. One could word it in the sense of identifying habitat and, if feasible, the critical habitat. There are a number of different techniques here, but the difficulty I have is that it's not really a legal question. I guess I'm of the view that a skilled legislative draftsperson can come up with the right legal language provided that the policy decision and the directions are sufficiently clear. To my mind, however, that is a scientific, ecological question that I'm not....
Prof. Schindler: Maybe I can follow up on that a little bit, and John may wish to comment after me.
It's actually possible for a species to survive without its critical habitat, in the way they've defined it, if there's enough of the rest. If I'm correct, I think there are actual examples of situations in Banff where there are bears surviving in marginal habitat because disturbance is so high in critical habitat. The most efficient way, of course, is to protect a core of critical habitat, along with enough of the rest that it's a question of maintaining minimal viable population sizes. Certainly you'd have to protect more marginal habitat or intermediate habitat than critical habitat to do that.
Mr. Adams: John, keep your eye on the chair, because I have one more question and he cuts me off all the time.
Mr. Kansas: On the linkage of habitat and population through viable population, the only reason to secure habitat is to secure the population, right? You need enough secure habitat and enough food and covers mixed into a mosaic such that you can maintain a minimum viable population. Right now, there's a science growing around that and it's called ``population viability analysis''. The problem is that with that mosaic of land use and available habitat that's still there for a particular species, we haven't done enough testing to know what the thresholds are to maintain population viability. I think wording in the legislation that links the population viability with the habitat is important, because that's the only reason: the two are inextricably linked.
Mr. Adams: Your comments are very useful.
If I might, Mr. Chair, my other question has to do with the question of species. I'll start with the definition, because I know it ripples through the legislation.
You made a point about the grizzlies becoming genetically more restricted. We had similar points with respect to salmon. Let's take the sockeye. As I see it, the situation is that there could be a certain number of sockeye this year and they'd all be doing very well. However, you could have the same number in ten years' time, but they'd in fact be genetically deprived. So in ten years' time this number would be more at risk than the same number today. This is the sort of point you were making with the grizzlies.
So if I can again give you some examples, it said:
- Replace ``wildlife species'' with ``a species, subspecies or geographically or genetically
distinct population of animal, plant or other organism.
- Do you see my point? I wanted you to address that, because it seems to me that there is another
way in which a species can be vulnerable in addition to the fact that its numbers are decreasing.
Prof. Schindler: That's a point we argued at length in the task force. Of course, I think most biologists would first of all freely admit they don't know how small a gene pool can be and still maintain a viable population. There are several examples, but some of them seem to indicate a much smaller number of individuals than others, which may mean some species are producing the mutations that maintain genetic diversity more.
I suspect what you would find is that you would have trouble at the enforcement level. This was the concern of a lot of the task force people, particularly the non-scientific types: where do you draw the line? If I were to talk to you about an example, the Athabasca rainbow trout or the Banff longnosed dace, if I had a group of scientists here, some of them would immediately go into an argument: well, is this a race, is this a subspecies, or is this a species? They would be talking about meristic counts and pyloric caeca and all sorts of things. I don't think you can really afford to do that.
Frankly, I would be quite content if we could have legislation that was simply at the species level, using a standard biological definition of the species at this point. I think down the road we will have the tools to go further than that, but it's fair to say we don't really have them on a widespread basis now.
Prof. Hannon: I might disagree partly with that, in the sense that you can look at some subspecies of caribou, for example. The Peary caribou right now are in the endangered category on the COSEWIC list.
Mr. Adams: The Inuit who have appeared before us say it's not the case. They say it's simply a matter of Banks Island.
Prof. Hannon: I'll just use it as an example, then. Morphologically that subspecies is quite different from other subspecies of caribou throughout the range, and they're highly adapted to the particular conditions they find on these arctic islands. Clearly if you simply said caribou are endangered, that would bring in a host of legislative problems throughout the range of caribou.
Mr. Adams: Good example.
Prof. Hannon: It is clearly the subspecies. And other subspecies are vulnerable, such as the woodland caribou, whereas the Barren Ground caribou are not. There are these difficulties there. I would say morphologically quite well-defined subspecies that are uniquely adapted to particular circumstances have to be listed separately, not just on a species level.
The Chairman: Madam Payne, your turn.
Mrs. Payne (St. John's West): Thank you, Mr. Chairman. Perhaps I should let Mr. Adams continue, because many of the questions I had in my mind have in fact been addressed, either partially or totally.
On occasion it's very difficult for a person like myself to be on this committee, coming from the area of the country I do. It's so dependent on the natural resources we have. I don't know how many of you read The Globe and Mail yesterday, but it had an article written by Barbara Yaffe about how Newfoundland is about to become a have province, as opposed to a have-not province.
Mr. Knutson (Elgin - Norfolk): All right!
Mrs. Payne: It's very difficult for me to talk to those people who will probably be exploiting the resources or polluting the environment in order to do that, because for so many years particularly people in my riding have been resorting to welfare and very low wages. I guess the task we have before us is to walk that very fine line where we can be all things to all people, and most of all fair to all people.
I was struck - ``shocked'' is probably a better description - Dr. Hannon, by the overhead you showed there, when we saw the reduction in habitat for the grizzly bear. However, if I were to go back to Newfoundland and say, well, in Newfoundland we need legislation to protect critical habitat, a lot of people would look at me and probably order a straitjacket.
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My question is whether there is some way of balancing industry and...not exploitation, but at least the use of our natural resources, together with protection of critical habitat and protection for endangered species - in fact, the prevention of species becoming endangered.
I know you've addressed that in some part before, but I'd like to perhaps give others an opportunity to continue.
Prof. Hannon: I think Newfoundland is an excellent example of an area where some resources have been mismanaged. Just look at things like cod stocks. More recently, there was an article in the paper the other day about lobster stocks now declining precipitously. Again, here is a situation where resources have to be managed in a sustainable way. The difficulty is that due to political interference in management processes you get a situation where stocks are overexploited. The end result is massive unemployment now among the very people who need to extract these stocks. If the fishery fleet, for example, had been reduced to a sustainable level, where it could deal with the stocks that were there, these people would still be employed instead of now being unemployed.
Obviously we have to manage our natural resources in a sustainable way. Clearly, there are ways of altering and mitigating some developments that will allow the preservation and continuation of endangered species in our lands. In some cases maybe we will have to set up reserve areas and so on. We have to build this in at the front end. The projects have to be assessed and these potential impacts mitigated before they're allowed to go ahead.
Ms Payne: Thank you very much. I purposely didn't raise the issue of the fishery in the hope that somebody else would zero in on it. Throughout these hearings I have been using it as an example, and it is a very good example.
It was interesting to hear the elder speak here this morning about traditional knowledge. As you quite rightly said, if politicians of whatever stripe who were in power during those times had listened to the people who had the traditional knowledge, perhaps we wouldn't find ourselves in the situation we're in today.
Thank you.
The Chairman: Thank you.
Are there any other interventions from Mr. Taylor or Mr. Steckle before I make a few concluding remarks?
Mr. Knutson: On that last point, since we're in Alberta, I think it's important to acknowledge there's evidence that the fish stocks in Newfoundland have declined primarily due to climate change and changes in ocean temperature. The overfishing might have been part of it, but there were also other factors of human intervention, and sometimes the connections aren't as readily apparent. Just tag it on.
Prof. Schindler: As a member of the federal Department of Fisheries and Oceans for 22 years, I can tell you that climate change is only a part of what has happened there. I think we have an analogue waiting to happen here in Alberta.
My standard method of looking into the future is to look at places that have been ahead of us. I think here, perched on the eastern slopes of the Rocky Mountains, it's fair to say we should look south at the states in the U.S. on the eastern slopes.
A few years ago, just out of curiosity, I went to see how those states were making a living. In general, mining is declining and a lot of the forests are gone. Most of those areas were smart enough to have had economic projections done and - surprise - the big economic engine of the future is tourism. The same mayors and councilmen who 20 years ago were saying they had to have that mine or forestry company are saying to cut off the forestry and the mining because they don't have enough areas for tourism. People don't like trees that are six inches high with flat tops, or big scars in the ground. I think there's something we can learn from that.
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I have economic concerns too, but I think they are way out of proportion. I grew up in a house without central heating or indoor plumbing. When I applied to university, I was shocked to find my family was considered to be below the poverty line, because I always thought I was very rich. Now I am very rich. I don't think I'm any happier. I think of my neighbours back then and I think of my neighbours now. They all have big televisions and new pick-up trucks and indoor plumbing. They are no happier than they were in the 1940s and 1950s.
Dollars don't buy happiness. Somehow that has to come through. I think we could be exploiting our resources at a much lower level, leaving something for the next generation. I fear our next generation in Alberta may be another Newfoundland.
The Chairman: Let me briefly provide you with a political rebuttal on the very strong points made by you as a group on the inadequacy of the bill in its application to federal jurisdiction only and then make also a general observation that has nothing to do with the bill.
It's true, as has been observed by you and others, that the application of the bill is limited. There is a reason for that. The effectiveness on the part of the federal government to operate in the provincial jurisdiction is virtually nil unless there is some form of agreement, as you have suggested, or some other approach. Evidently at a time when devolution is the dominating political approach in federal-provincial relations, what Ottawa can produce is a piece of legislation that respects federal boundaries and then invite the provinces to do likewise. This was in essence the outcome of the Charlottetown meeting of federal-provincial ministers a few months ago.
So what you are saying is technically correct, but politically the reality is a different one, and there is no way this committee can amend the bill in its deliberations and report back to the House clauses that would be, from the point of view of its application, more and further reaching than the federal jurisdiction. What we can hope and strive for, and I hope also the public will be helpful in this respect, is to generate pressures such that mirror legislation will be passed by the provincial governments across the country and there is a coming together of two different political jurisdictions with the same aims and objectives. That is the nature of the confederation today, and these are the political imperatives we have to respect.
If we want to be effective in the overall issue of coming to grips with endangered species, we have to be political too. I don't think we would go very far by expecting this bill to deliver more than it does on the question of jurisdiction.
On the other points, the ones made by Professor Rounthwaite, of course we will look at them very carefully, and we will try to repair where we can. But even then we have technical limitations, because it is a well-known parliamentary rule that you cannot make amendments that go outside the scope of the bill itself. We have to operate very carefully there.
By and large it has been a very helpful meeting with you and the preceding witnesses this morning. I would like to conclude only by making an observation that came to mind when I was listening to you earlier.
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The city of Berlin draws its name from the German name for the bear. The capital of Switzerland, Bern, does the same. There used to be bears in those surroundings when those cities were founded. The population of Europe has made it impossible for species to survive. The population pressure has been such that species have disappeared, as we all know, from Europe entirely.
We are still in this happy grey area where we may still achieve something, but we have to learn some lessons from population pressures and the disappearance of species. For the life of me, I cannot understand why we do not engage in a discussion on populations for Canada. The time has come. We have doubled our population in the last 40 years. We will double it again in the next 30 years, we are told by....
The major pressure, of course, comes within a band of 100 kilometres above the Canada-U.S. boundary, but evidently it's the presence of the human that is the threat. We all know that, and yet we seem to be so hesitant to cross that river and start looking at ourselves and our activities.
I agree fully with you, Professor Schindler, that we could do things that we do now in a much more careful manner, in the way you have elaborated. There are hundreds of examples all over the world where this has been done and where we could do it too. But basically the question of population pressure has to be examined as well if we are to be successful in the long term in this kind of rehabilitation exercise that is so essential.
We can then give assurance to those who have appeared before us and those who will appear before this committee later on who are worried about the fact that this bill is too strong; that this bill is not strong; that this bill is very weak. Nobody should lose sleep about it, quite frankly. There's nothing to worry about. It is a little block, however, an angular stone, in an edifice that still has to be built. Those of you in this room who are worrying about it have had enough evidence this morning to that effect.
I hope what this bill cannot do could be achieved through education, could be achieved by mobilization of public opinion, by cooperation between levels of government, and perhaps by bringing the population ahead of governments in realizing that here there is something that demands attention, so that the legislation will gradually follow, as is often the case.
I apologize to my colleagues, but they are accustomed to my daily sermon. I promise this is the portion for today. I won't do it later on, but maybe tomorrow again, if it's necessary.
Mrs. Kraft Sloan: If this is our daily sermon, then I'm very refreshed to know that this is our church.
The Chairman: I thank you very much again on behalf of my colleagues. We will look carefully at what you've told us.
We're going to adjourn until 1:30 p.m., in this room again.