EVIDENCE

[Recorded by Electronic Apparatus]

Monday, February 3, 1997

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[Translation]

The Chairman: Good afternoon, ladies and gentlemen, welcome to the committee.

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[English]

It's nice to see you all again, or for the first time in the year, depending on where you come from. We had a good exploration in Vancouver and Edmonton, and we certainly came back with substantial material and ideas. I think it was worth every minute. In particular I would like to thank Paul Forseth for his urging that we travel west, and the members on the Liberal side as well, and for the constructive role they played during the hearings.

Representations have been made both to the clerk and to me about the Thursday deadline for amendments being too close, considering the hearings this week. I would suggest that we change it to Monday morning, a week today, so that there is a good weekend to elaborate on them, to refine them, and deliver them to the clerk on Monday so that we can start, possibly, on Tuesday. It doesn't mean that an amendment that is not the equivalent of a volume of the Encyclopaedia Britannica cannot be introduced at the last moment, if there is a desire to do so. We shouldn't be so rigid. But let us try to give the clerk the bulk at least, the substance, the core of what we want to put forward - and I am particularly addressing here the members of the opposition - by Monday morning, a week today.

We could start on Tuesday, and we'll see how we proceed on Tuesday, Wednesday, and maybe even Thursday. We will certainly sit those days, twice or three times a day, depending, so as to roll while the memories are fresh and the recollection is clear.

I was very impressed by the submission of the Federation of British Columbia Naturalists, I must say. I don't know why I recall that better than others, but the points they made in their submission were so lucid and so far-reaching in a way as to what we're trying to deal with here. I will not elaborate right now. There's no point in launching into another sermon.

I would only urge you, when time permits, of course, to go over again the submissions we were given, because there is good material there. There is no doubt that what we picked up in the west was high quality and deserves our attention in strengthening the bill, wherever possible.

As you know, tomorrow the minister will appear before us, and apparently, I am told by the parliamentary secretary, he is very keen on hearing your views and questions. So we could have a good session.

Tomorrow we have the department, Wednesday no one, and then Thursday we have - would you mind mentioning the Thursday meeting? It's important.

The Clerk of the Committee: Tomorrow morning is the Ontario Environmental Farm Plan and Environment Canada. The witness for Environment Canada will be Mr. Slater. He is essentially there to clarify any questions you may have from the trip or outstanding issues. The Ontario Environmental Farm Plan requested to appear, and they were sort of the clean-up, if you wish, from other witnesses.

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Tomorrow afternoon, as the chair explained, we have the minister. Thursday we have the interdepartmental briefing of DIAND, Environment Canada, Fisheries and Oceans, and perhaps National Resources Canada. It's to explain the interrelationships of these four departments in relation to this bill - recovery plans, for example; clause 40.

The Chairman: Thank you.

Do you remember the point made in the Federation of British Columbia Naturalists submission when they said that clause 4 - I believe, but I don't know for sure - should be strengthened so that the bill applies to all departments? It was the only submission that made that point, as far as I can recall. They felt that other departments have a role to play.

The meeting on Thursday is particularly meaningful from that perspective, to find out the role other departments can play and the desirability of including or having a reference to all federal departments, the federal house, as they call it, in the legislation.

Anyway, without further delay, we welcome Mr. Elgie to the committee and invite you to start.

Mr. Stewart Elgie (Board Member, Canadian Institute of Environmental Law and Policy): Thank you, Mr. Chairman and members of the committee.

[Translation]

I will speak in English today because my French is not very good. I apologize.

[English]

I am appearing today in my capacity as a board member of the Canadian Institute of Environmental Law and Policy, who asked me to appear on their behalf. I've given out a brief overview for those of you who aren't familiar with an organization that calls itself by the unfortunate acronym CIELAP. It's a charitable organization dedicated to research into breaking areas of environmental law and policy, and it really focuses on being a think-tank, if you will. It has been in business since 1970. Two of its main areas of focus are biodiversity and biotechnology. Indeed, we've just put out a report compiling biodiversity legislation across Canada, which probably is a bit more general than this committee may need, but may be of interest to those working on this issue.

I understand the committee has heard a tremendous amount of testimony from a number of different viewpoints and probably has had every conceivable aspect of this legislation addressed to it on more than one occasion. I will try not to repeat, but I encourage and hope that there will be a lively number of questions and discussion at the end. It may be more useful for me to perhaps respond on issues that may still be of conflicting evidence before the committee or issues of some uncertainty.

What I intend to do for most of my presentation today is to go through the brief that I've submitted to the committee. It may be useful to have that before you, and I understand the clerk may even have extras for those who have used it for kindling or some other purpose.

The first thing I would do is just update the committee on events since I appeared several months ago.

A poll was released. It was commissioned by the Canadian Endangered Species Coalition and carried out by an organization called Canadian Facts Consumer Opinion Centre, which is one of the most reputable polling companies in Canada. I've asked the clerk to distribute that to committee members. Some of the findings in there may be of interest in terms of the people who didn't make it into this committee room, the 28-million-odd Canadians who also care about the bill.

The first question simply asked general support for federal endangered species legislation, and there's a uniform high level of support across the country. I apologize. The photocopying has blacked out the strong support category, but 94% is the total support in the left-hand column. It ranges from a low of 90% in the Atlantic to a high of 97% in Ontario and 93% in Quebec. In rural communities, 92% support federal endangered species legislation. Just for your information, rural communities were communities of less than 10,000 persons.

The second question - we tried to pick questions that seemed to be topical - is when a committee of scientific experts set up under the legislation determines that a species is endangered, (a) should the government be required to list that species, or (b) should the government be allowed to decide whether or not to list the species? The poll results found 73% of the public felt that in that case listing should be required where scientific experts find that a species is endangered.

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The third question concerned protection of habitat. The question there was should habitat protection be required under the legislation or should government be allowed to choose? Again, 73% felt habitat protection should be required. It was fairly consistent across the country and there was an identical level of support in rural areas. Again, 73% thought habitat protection should be required.

The fourth question was whether or not habitat protection should extend only to federal lands or to all areas where a species lives. There 84% of respondents thought it should extend wherever species live. In rural communities 83% thought the act should apply not just on federal lands but wherever a species lives. The level of support is again fairly consistent across the country.

The final question dealt with the issue of jurisdiction. People were told that there were many species that crossed the Canada-U.S. border and they were asked which level of government should have primary responsibility for protection of those cross-border species. And 75% said it should be the federal government. It's a fairly consistent level of support, including 74% of Quebeckers, I might add.

Those poll results may be of some interest to the committee. I've also included - and I won't go through it - a poll done in late 1995 by the Angus Reid Corporation called Public Support for Federal Endangered Species Legislation. I would just draw the committee's attention to the last page of the report. One of the things people say to us is, if you ask somebody in the abstract if they support endangered species legislation applying to a species they'll say yes, but then the question is what if it was on your land? Then you would get a different answer.

Angus Reid actually asked that question in late 1995. This was asked only of rural and small community residents again, and they found that 92% of rural Canadians would be willing to leave some of their land in a natural condition to protect endangered species. The largest response was that people were willing to leave as much as needed. For most of them it fell between 5% and 25% that they'd be willing to leave in a natural condition to protect endangered species. There was some increase in the responsiveness if compensation was offered, but it was only about a 2% increase. So while some would be more favourably disposed with compensation, what it indicated is that - to no one's surprise, I think - rural Canadians are very supportive of protecting endangered species generally and are certainly willing to contribute their fair share.

Those are some poll numbers, anyway.

I understand the committee, in its travels, has heard a number of concerns expressed both ways about the legislation, and I thought perhaps I might quickly address just two. If there are others, perhaps we could leave those for questions.

The first is - and I think this has almost acquired mythological status - that some people will say look at the U.S. Endangered Species Act and all the problems they've had with that, surely we shouldn't have endangered species legislation in Canada. I would have two responses to that. One is that we aren't passing the U.S. Endangered Species Act, nor is anyone proposing that. This bill takes a more preventive approach, whereas the U.S. act focuses on more of a critical care approach, if you will.

But another point may be of interest to the committee, and I put some numbers on the back of one of the handouts I gave. The front refers to key issues in endangered species legislation and the back just has a couple of statistics about comparing the U.S. and Canada.

I practised environmental law in the U.S. back in the late 1980s so I do have some familiarity with this. It is true that the U.S. has had more difficulties or problems, or in some instances even conflicts, with their Endangered Species Act than we've had in Canada, but the cause of those problems is not the U.S. Endangered Species Act; the cause of the problems is the U.S. endangered species situation.

I've put the numbers on this chart. The U.S. has 835 endangered species compared to Canada, which has 65 endangered species.

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Mr. Chairman, should I continued?

The Chairman: Yes, please do. It may be a quorum problem. We don't know yet.

Mr. Elgie: In any event, the U.S. has 835 in the endangered category; Canada has 65. The U.S. has 214 threatened species; we have 65 threatened species. So if you assume the two countries have a relatively similar land mass, they have a far more significant endangered species problem.

The other point that's worth noting is that in a proportionate sense, the vast majority of the U.S. species at risk are in the endangered category, meaning that they are at or near the brink of extinction. The majority of Canadian species at risk are in the threatened and vulnerable categories, meaning that they're on the road to the brink but they're still not at the brink of extinction.

What's significant is that there are more options for species in the threatened and vulnerable categories. When a species is endangered, often you have to choose between stopping everything or saving its life. Canada in most cases has the option to go with a more preventive approach as opposed to the U.S., which has had to go with a more critical-care-based approach.

In my view, the one lesson that comes most strongly from the U.S. act, which I hope Canada will listen to, is that the U.S. waited a long time - too long - before taking effective measures to address its endangered species problem, and as a result they had fewer options. I would urge this government and this committee to pass legislation that deals with our endangered species problem while it's still at a fairly manageable stage in Canada. If we wait another five or ten years, we too will have hundreds of endangered species, and more of those species in the threatened and vulnerable categories will be in the endangered category, where the options are fewer. So in many ways we're fortunate not to have the problems the U.S. has.

The second issue is that there were some concerns expressed about the impact the bill would have on private landowners. I won't say too much about that unless there are questions people wanted to ask, except to say that certainly the poll data show that there's tremendous support for legislation and indeed for protecting endangered species on private lands among rural Canadians. This bill as it stands will impose virtually no additional legal obligations that don't already exist under other federal legislation in terms of protection of migratory birds or fish habitat, although there are some small changes.

Four provinces have had endangered species laws on the books for as long as 25 years, in Ontario's case, and have had mandatory habitat protection in those laws, and there have been surprisingly few - very,very few - examples of situations where those laws have worked a real hardship on landowners. I'm only aware of one or two, and I would suspect that your average bylaw zoning amendment in a municipality would have far more people adversely affected than that in the span of only a month or two.

Finally, in the task force we actually tried to build some flexibility into the legislation to accommodate not only landowners but other land users by allowing flexibility through the permitting process, through the agreement process, which allows the responsible minister to waive any prohibitions as long as people are taking reasonable mitigation measures.

So I would submit that the act certainly must, and indeed should, apply to endangered species living in all of Canada and shouldn't stop at the border of federal lands.

One of the sayings that came to mind when I was thinking about all of the objections, about all the ways this bill may affect different interests in an adverse way and the concerns that have been expressed.... It occurred to me that it's important not to lose sight of the goal of the legislation. I was thinking of Nietzsche's words, that the most common stupidity is forgetting what it is we're trying to do. In this case what we're trying to do is protect endangered species, and we should do that in the most efficient and fairest manner possible, but we shouldn't sacrifice the goal for the sake of some of the bumps or hills in the way of getting there.

Now, there are basically three things that an endangered species act has to do, and really, if you only had three clauses in this bill they would say three things: one, we must identify all species at risk; two, we must prevent them from being killed or harmed; and three, we must protect their habitat. If you do those three things, that's the formula for saving endangered species. The rest is really just the details or the icing on the cake.

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In my submission, this bill is pretty good on number two, which is preventing, harming or killing a species at risk. In terms of listing and identification, it needs to be strengthened. In terms of protection of habitat, I would give it a failing grade at this stage.

If I may, what I'll probably do now is take the committee through some of the most important recommendations in my brief and then talk about some of the general themes at the end, after we've wrapped up. Again, I would encourage questions on specifics if there are any.

The Chairman: Yes, there will be questions, Mr. Elgie, so if you can compress your presentation there will be more time.

Mr. Elgie: Sure. How long would you like me to compress it to, Mr. Chairman?

The Chairman: It's up to you.

Mr. Elgie: What I'll try to do is follow.... I've put in my handout key issues in endangered species legislation, and there are seven of them there. I'll try to organize my comments in terms of the clauses of the bill that relate to each. I think there's a certain logic to the issues, or at least I hope there is, as I've laid them out, starting with which species are covered and moving through to how those species are protected.

The first issue, then, is which species or areas are covered by this bill. I would refer the committee to several clauses. The first is subclause 3(2), and the comments are at page 26 of my brief.

Subclause 3(2) is the one that says the bill applies to migratory birds and their habitats protected by the Migratory Birds Convention Act. I would simply say that the way that's worded it's quite unclear. It's ambiguous and may well be interpreted in a manner that means that migratory bird habitat is not protected. The Migratory Birds Convention Act provides some protection to habitat but it's not complete protection, at least in the regulations. I would recommend this be clarified; otherwise we could end up with the very odd situation where migratory birds are protected from killing or hunting but are not protected from the number one threat that's causing them to be endangered, in which case the act would be doing very little good for any of the migratory birds in Canada.

There's no doubt, I would submit, that full protection of migratory birds is within the federal government's constitutional jurisdiction and simply makes sense from a policy perspective, I submit. If the federal government intends to address the problem, it should address the real problem and do so effectively.

In addition, there are some migratory birds not covered by the Migratory Birds Convention Act - birds of prey, falcons, hawks, eagles and the like - and simply saying ``migratory birds and their habitat'', the same formula used for fish, would deal with that problem.

Subclause 3(3) is the next one I would address, and that's on page 28 of my brief. That deals with the application in the Northwest Territories and the Yukon. I understand from readingThe Globe and Mail that there was some testimony on that issue before the committee by both the Yukon and the Northwest Territories.

I might just provide a bit of background to clarify, first of all, what the territories have the authority to do. Under the Yukon Act and the Northwest Territories Act, the territorial governments have authority for management of game species. There are two very significant things there that the territorial governments cannot do and only the federal government can do. The first is that they cannot protect habitat that is federal lands in the north, which constitutes - I haven't seen the latest data after the land claims - over 95%, and in some cases 98% to 99%, in the north. Habitat protection must be done by the federal government, otherwise there will be a gap in the north.

Second is application to non-game species, including all plants. I don't know where the line is in the animal kingdom between game and non-game, and I apologize, but the territorial governments only have authority for regulating the direct taking of game species. I would submit, then, that subclause 3(3) is somewhat broad at the moment. Subclause 3(3) permits the Governor in Council to provide that this act does not apply in the north, where there's equivalent legislation by territorial governments, and territorial governments do not have the statutory authority to pass legislation that is equivalent to the full scale of this bill.

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I would recommend narrowing that delegation or that federal withdrawal power simply to the management of game species and simply to the application of clause 31 of the bill. Clause 31 is the clause dealing with the prohibition of direct harm or direct taking of species, and it's really that clause that has the potential to overlap with the north in its application to game species and their direct taking.

Fortunately in the north at the moment there are relatively few endangered species, largely because there are less than 100,000 people inhabiting 55% of Canada up there. But I would strongly recommend that this is a tremendous opportunity to prevent the list from getting longer. Some of those species are at risk because of habitat destruction, some because of direct taking, some because of pollution and poisoning. All three of the types of threats that we see elsewhere appear there, and the territorial governments at the moment have no endangered species legislation.

So I would urge the federal government to have the legislation apply in the north. Subject to the qualification that application to direct taking of game species...if and when the territorial governments pass legislation protecting those endangered species, the federal government may withdraw in those areas.

The final clause I would address in terms of what species are covered by the bill is clause 33. At the moment the bill covers aquatic species, certain migratory birds but perhaps not their habitat, and species living on federal lands. For the most part, those species already have legal protection under other federal laws that is equivalent to what this bill offers them. The Migratory Birds Convention Act provides protection against direct taking and disturbance of nests. The Fisheries Act provides protection against direct catch or habitat destruction. Federal land management legislation, be it parks legislation, wildlife legislation or even the Territorial Lands Act in the north, protects against habitat destruction.

The one area where this bill offers a significant improvement on the status quo, or potential improvement, is in clause 33, and that is the application to species that cross over the Canada-U.S. border - which migrate or range across, I should add. This comes from a recommendation of the task force, and I understand there may be some confusion about that. The recommendation is section 10.1.1 of the task force report, if anyone wishes to refer to it, which says the federal government should have authority to protect species that are shared with other countries or that migrate across Canada's boundaries.

The policy rationale behind that recommendation was simply that provincial governments on their own cannot protect species that move beyond their borders. There's a need for interprovincial or international action to protect them, and only the federal government is in a position to take that action. That is not to say it should do it exclusively, but it certainly has a role to play and it must be a leadership role in the case of cross-border protection.

Clause 33 as it stands right now - and the committee has heard this, I'm sure - in my submission, needs to be strengthened because at the moment it's entirely optional. The federal government may pass regulations protecting cross-border species but it may not, and I would submit that results in the worst of both worlds. It creates the potential that the federal government may pass those regulations in a province that already has equivalent legislation in place, which would be redundant. It also creates the possibility that the federal government may not pass those regulations in a province that does not have equivalent legislation in place. So it creates the option of duplication or a gap.

I would recommend that the committee instead amend this to require those regulations to be passed, but to provide equivalency language along the lines of that in CEPA perhaps, providing that provinces with legislation equivalent to the federal legislation may be withdrawn in those areas. The result would be that cross-border species would be assured of legal protection in all jurisdictions in Canada by one level of government or another, which is really the end goal of the exercise, it would seem to me.

Those are the three ``what species it applies to'' questions. I'll try to move through briefly, keeping the chairman's comments in mind.

The second issue is how listing is done. Once a species is eligible to be considered under the act, one of those species that makes it onto the eligibility list, then the question turns to listing. That's really clause 30. Clause 30 does not follow the recommendations of the task force. The task force recommended that COSEWIC's listing decisions take effect under this act. Clause 30 says the Governor in Council ``may'' pass regulations establishing a list of wildlife species at risk.

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The danger with that, of course, is that they may not. Certainly the experience with provincial legislation in some cases, where similar cabinet discretion has been conferred, has been poor. Quebec has yet to list a single animal species in the six years their act has been in existence. Ontario has listed only 17 out of the 50 species COSEWIC has recognized as being endangered or threatened within their jurisdiction.

Even though there is a COSEWIC list out there that those governments participate in and that identifies species at risk within their jurisdiction, fairly similar to the process this bill sets up - pretty much everything except for the web site, I would submit - it hasn't ensured, even with that level of knowledge and public accountability, a full, scientifically based endangered species list. That list is the foundation of this whole act. The credibility of the act will have a whole lot to do with having a complete list.

So I would recommend that the committee require listing be mandatory and also put a time limit. In other words, a listing decision must be made within 60 days, for example, of a COSEWIC designation.

There are two other points. One, there's a big issue that to my knowledge hasn't received too much attention: what do we do with the existing 275 species at risk that COSEWIC has spent the last 20-odd years designating? Certainly it doesn't make sense to go back to square one and spend the next 20 years redesignating all those species. I would strongly urge the committee to attach as a schedule to this bill the existing COSEWIC listing of species at risk.

That was the approach followed by Australia when it passed its national endangered species legislation in 1992. It's the approach followed in a private member's bill, which is currently before the House. Both attach a list already. This will avoid our having to spend the next 20 years revisiting the decisions.

I would add, by the way, if there is concern that one or two of the species on the existing list need to be revisited, the bill does provide for COSEWIC to revisit all listing decisions within ten years. The committee may want to recommend that first priority be given to those species that haven't been reviewed already by COSEWIC for ten or more years to make sure none of the listings are outdated.

The other thing I would say is that I certainly know there are some who advocate that the Governor in Council should have the discretion to list or not list. I'm not one of them, nor was the task force. If the committee decides that's the approach to follow, I would simply ask two things: one, that there be a time limit on that decision; and two, that the Governor in Council ought to provide COSEWIC with the reasons for that decision, because COSEWIC will then have to revisit the species.

If the Governor in Council decides not to list it, that species doesn't become immune from listing for the rest of its life on this planet. COSEWIC presumably will revisit that listing decision and will need to have the scientific reasons why the Governor in Council has chosen not to adopt its listing recommendation. I would strongly urge you, if you go with the discretionary approach, to require that scientific reasons be provided for that.

Third, how well does the legislation protect against direct harm? The legislation is pretty good on that count. I won't go through it in detail.

Clause 31 protects against harming or killing. The only point I would make there is that it does not protect against disturbance, which was a task force recommendation. It does not protect extirpated species, nor does it deal with attempts. If somebody shoots an endangered species and misses, they're not yet covered by the bill, whereas two of the four provincial acts do cover attempts.

Similarly, paragraph 33(a) deals with direct harm to cross-border species. The same comments can be made there about disturbance and extirpated, but the additional comment I would make is that for some unknown reason the word ``wilfully'' has been inserted. Only ``wilfully killing'' is prohibited. That's one of the highest - I believe the highest - standard in criminal law in terms of the level of proof required. Ontario has had that in its legislation and, because of that high standard, has found it virtually impossible to prosecute offenders who have directly killed or harmed endangered species. I urge you to delete that word. There's no need for it.

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Fourth, probably the most important issue is protection of habitat. Obviously, if we're to solve the endangered species problem we have to fix what's broken, and what's broken in over 80% of the cases is destruction of habitat.

I won't go through the current system in the bill, but I've set it out on page 66 of my brief. It adopts a fairly complicated three-step approach.

Step one is recovery plan development, one year to two years after listing by cabinet, and again, only if it's deemed to be feasible. You'll wait from one year to two years for a recovery plan.

Second, you'll wait for 150 days after publication in the Canada Gazette for an implementation report.

In step three, you'll wait for a potentially unlimited length of time for the minister to pass implementing regulations under clause 42. And those regulations are optional. The minister may or may not pass regulations to implement habitat protection requirements in a recovery plan.

So when you weave through the maze of this bill, for habitat at least, what you find is that2.5 years to 3.5 years after listing, if habitat protection is recommended in a recovery plan, the minister may or may not choose to pass implementing regulations. In other words, the answer is, ``We might protect habitat.''

All four provincial endangered species acts - and it's probably important to clarify this - include a mandatory prohibition against destruction of habitat for all endangered or threatened species listed under those acts in the same manner as there is the automatic prohibition against killing or against disturbance of residence under this bill. That can be found on the very final page of my brief, if anyone makes it that far.

I've set out those sections from each of the acts. It's an approach that certainly has not been cumbersome or unduly harsh in the four provinces that have followed it. I submit that it's the most effective approach.

It's the approach followed under the Fisheries Act now, meaning that if this bill passes, non-endangered fish will have stronger protection under the Fisheries Act in terms of habitat than an endangered fish will have under this bill.

To cut to the solution, then, there are two ways to protect habitat. The first solution is to amend clause 32 to simply say that there's a prohibition against destroying or disturbing not only the residence but the critical habitat of a listed species. That's by far the simplest approach and the most effective. You don't have to wait two and a half years to solve what is a major problem in virtually every case, nor do you have to go through the uncertainty and expense of passing regulations for each of the species on COSEWIC's list. It's a waste of taxpayers' money and the government's time to have to re-regulate something that will required in every case.

Similar amendments, I submit, should be made to clause 33, which deals with cross-border species. Again, at the moment those species are protected from direct harm or destruction of residence, but that's not the main threat they face. The burrowing owl needs habitat. The swift fox needs habitat. Clause 33, then, should have habitat added to the prohibition of destruction of residence.

The second way to deal with habitat - and, I submit, the more cumbersome way - is to require the implementation of habitat protection requirements in a recovery plan. I've set out in my brief how that may be done, so I won't walk through it, but the most important change is to subclause 42(1). This change can be found on page 69 of my brief.

First of all, to protect habitat, subclause 42(1) must say that the minister shall pass regulations to implement recovery plans. I recommend putting a time line on that, otherwise the minister could wait indefinitely.

Second, this clause could specify that those regulations will include prohibitions against destruction of species habitat, so it would be habitat protection achieved through recovery plans, but, again, it would be required.

My final point about habitat is simply that the bill does protect residences, but the definition of residence is limited to a den, a nest or a similar area that a species habitually occupies. As I'm sure the committee's heard, there are many species that simply do not have an area similar to a den or nest. It doesn't make ecological sense to limit it. Caribou and bison, for example, don't have the equivalent of dens or nests.

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Moreover, even for species that do have a den or nest, it isn't their residence in a biological sense. It would be the equivalent in human terms of saying that a bedroom you spend only three months of the year in is your residence. It would ignore the rest of your home. It would ignore the neighbourhood you depend on for meeting your critical needs. I would urge that the definition be revised to reflect ecological reality for species.

Fifth, are there any exceptions? Clause 36 provides an automatic exemption for activities relating to national security, health or safety of plants and animals. The task force recommended that there be an automatic exemption for these kinds of activities only in emergency situations.

The rationale was something like this. Where you have a disease outbreak - for example, in a species or crop - there may not be time to go through the whole permitting and advance review and consultation process under the permit requirements. We'd need to move quickly. That rationale made sense to everyone, including the Canadian Federation of Agriculture, which sat on the task force. We recommended an automatic exemption only in emergency situations.

I would recommend, then, that the wording of subclauses 36(1) and (2) be revised in the manner I've recommended here to provide that there's an automatic exemption only when immediate action is required. Where immediate action is not required, there is no reason why actions taken to protect the health of plants or animals should be immune from the requirements of this act; in other words, that plants or animals should be given automatic priority over any endangered species in Canada. I submit that this doesn't make policy sense and it's poor drafting that has overshot the mark.

Subclause 46(2) is the normal exemption and agreement clause. This is a very important clause. I would submit this is probably the most important clause in the bill. This is the clause where the real decisions are going to be made about balancing development needs with species protection, because the effect of the prohibitions in the bill is simply to force a person to seek a permit or an agreement. The real conservation decision-making will occur in crafting those permits and agreements. There is flexibility built in deliberately. That's why the automatic prohibitions were included, because there's flexibility in the permitting process here.

I've made a couple of recommendations on page 74. One is that in issuing a permit, the minister require that reasonable alternatives not only be considered but actually be adopted. Second, it currently says the activity will not jeopardize the survival of the species. The goal of this bill is the survival and recovery of a species. That clause should be amended accordingly, I submit, to provide that the action may not jeopardize the survival or the recovery of the species.

Clause 47, which provides for similar permits under other legislation, should be amended accordingly.

The sixth issue is advance review. Advance review simply means that at the early stages of planning a project, a person takes into account the needs of a species. If you take into account the needs of a species at the early stage of planning, in almost all cases the project can be designed or modified to go ahead in a way that's consistent with the species' survival. This is the success story of the U.S. act, the part that doesn't make the tabloids - that is, 99.9% of projects in the U.S. that have had a potential to have a conflict with endangered species have been able to go ahead after an advance review process. In some cases minor modifications have been required, but projects have been viable and been able to go ahead. In most cases little or no modification was required.

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I would strongly urge the committee, then, to seek to build advance review into this act. The easiest way to do that would be to amend the law list regulations under the Canadian Environmental Assessment Act so that permitting decisions under this act trigger an assessment. There are some recommendations in my brief as to how that could be done through the legislation. I won't go through them now because of timing reasons.

The final issue is enforcement. I would applaud the government for living up to a commitment it made in a pre-election document where it committed to provide Canadian citizens with the opportunity of private enforcement of environmental laws. This bill does include citizen enforcement provisions as a last resort when required.

The provision, I would submit, needs to be strengthened. There are four jurisdictions in Canada that have citizen suit provisions now: Quebec, Ontario, Northwest Territories, and the Yukon. All allow a citizen to bring a civil action to enforce any environmental law they have on the books, not just endangered species laws. They've been in place for as long as almost 20 years in the case of Quebec.

What we've seen is that in Quebec there have been - I don't have the exact number - fewer than 10 citizen suits, I believe, brought in that 20-year history. None of them, to my knowledge, has had a significant adverse affect on any landowners. Quebec also has an endangered species act, by the way, which prohibits habitat destruction, so citizens do have the right to go to court over any habitat destruction in Quebec right now, as is the case in Ontario.

The best predictor of whether or not this section will be abused is the history in the four provinces and territories that have similar sections, where it's been anything but abused. It's been under-used, in fact, most people would say.

The second point I would make is that this bill has the weakest, if you will, citizen suit provision of any of the five jurisdictions. It's weaker than the four provincial ones, and the reason is this: it requires a citizen, before bringing an action, to request an investigation, to wait for the government's response, to have a court find that the response was unreasonable, and then the action may be brought.

Three of the four territories and provinces don't require an investigation request at all. There's simply a right to enforce the law. Ontario does require an investigation, but makes one exception, and that is that where there is an imminent threat to the environment, where imminent harm is about to result, you don't have to ask for an investigation, have the investigation go on while the harm's happening, and get your response after the harm has happened. The Ontario act says that where there is an imminent threat of harm, one may proceed with the action without awaiting the result of the investigation, and that recommendation was agreed to by an industry environmental task force in Ontario that drafted their environmental bill of rights. I would strongly urge that amendment on this committee here, also.

There are some other important amendments regarding the enforcement provision, but I will not go over them now. They're in my brief and they can be addressed in questions. But again, that's a very important clause. It's the only checking mechanism available to ensure effective enforcement. If you don't have a citizen suit law, there is no other manner of ensuring that a law is enforced or simply not ignored through non-enforcement.

It's a last resort. It'll only happen when the government has investigated and has decided not to act and it's unreasonable, but it's a very important last resort.

In conclusion, then, I'd like to congratulate the Government of Canada for moving forward on this initiative. It's very much needed. I would consider this the most important environmental initiative of this government. The current bill is an improvement over the 1995 legislative proposal and certainly reflects more of the task force recommendations than that proposal did.

At the same time, however, as it stands, the bill applies to only about 40% of the species at risk in Canada. It does not ensure protection of their habitat, and it needs to be strengthened if it is to effectively make a difference for most, if not all, of Canada's endangered species.

The changes that need to be made are very doable. The bill doesn't require radical surgery, but it does require surgery, and I would urge this committee to make certainly the most important of the amendments that you've heard so many witnesses advise over the past two months.

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Finally, just to bring it back to why I care about this issue, our wildlife is an important part of who we are as Canadians. Our flags, our currency, our art work tells us that. It's something that unites us from coast to coast, that we all feel very strongly about.

Protecting endangered species may not have immediate benefits in the next month or two or even the next year, but it's an intangible investment in the future of Canada. It's an investment that will ensure that our grandchildren will live in a Canada that has grizzly bears and peregrine falcons and beluga whales and swift foxes, just as we have. If we do not make these changes now we will be passing on an ecological deficit to those grandchildren that they will have to repay.

The committee and the government has a historic chance, then, to pass legislation that will make a real difference for the human and non-human inhabitants of this country, and I urge you to take the opportunity to do so.

Thank you, and I'm sorry for perhaps taking longer than I should have.

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

We'll call on the potential surgeons, starting with Madame Guay, Mr. Forseth, and Mr. Adams.

[Translation]

Ms Guay, please.

Ms Guay (Laurentides): I would like to say hello to all my colleagues and wish them a very Happy New Year if it's still the proper time do so.

I see that you have done a very thorough job, a very technical and very detailed examination of the bill and its legal aspects. When I say all of this, I am somewhat concerned, because it isn't easy to apply this to all levels of government.

We know that recently, a harmonization agreement was signed with the provinces, between the federal and provincial Ministers of the Environment. The agreement seems to be based on something that we do not find reflected in Bill C-65. There is therefore a great deal of dissatisfaction. The environmental groups are not satisfied. They feel that the bill doesn't have any teeth, and the provinces and territories are dissatisfied because they feel that the federal government is interfering with their jurisdiction.

I will give you an example of something that happened in my own riding; it relates to an endangered species. There was a plan to build a highway ramp. The project had been on-going for five or seven years and only one problem had been raised. The environmental groups were against it because of a bird that had lived in that area for some time. This opposition prevented this large project from getting off the ground.

Finally, a solution was found. The environmental group helped to relocate the bird. It is fine now. It is living in a wonderful healthy environment.

The environmental groups followed this very closely. There was a two-year delay while the bird was relocated. So, one must be careful. There are always two sides to a story.

I refused to give my approval until I received assurances that the bird had been relocated. However, there must be some type of balance.

I fear that this bill will add some things, but in a negative way. There is already a lot of work being done within the provinces, municipalities and environmental groups. I know that some provinces might not have laws that are as strict as those in Quebec and Ontario, but that does not mean that we must not take into account the work that has already been done by certain provinces. That is the comment that I wanted to make.

Once again, I would like to congratulate you for your work, but I believe that we must not lose sight of what has already been done. With respect to the amendments that you have suggested, they will make a lot of people unhappy, and they will be very difficult to enforce.

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The Chairman: Thank your, Ms Guay. Would you like to respond, Mr. Elgie?

[English]

Mr. Elgie: Certainly you've made some points that are quite valid. The recommendations in that brief really fall into three categories. Some of them are critical or important and some of them are really housekeeping amendments that will make the bill simply run more smoothly, in my view, but really won't have any substantive difference. So I urge you not to be deterred by a simple numerical count of them all. Not all of them are really going to the essence of the bill.

You spoke of the national accord, and I agree with you that's an important document. In the end, endangered species don't really care which level of government is protecting them. They simply need protection.

The national accord reflected a commitment by the federal government and at least six or seven provincial governments that there should be legal protection in place throughout Canada for endangered species. The most logical way to do that is for each government to legislate to the full extent of its authority and, where there is overlap, to provide that one or the other piece of legislation will take effect.

Quebec has very strong endangered species legislation on the books, stronger than this bill. So I would certainly be quite comfortable with the legislation providing that clause 33, which is the one that could overlap with Quebec's, would not apply in a situation where a province had equivalent legislation.

I think that way is the most consistent with the national accord. The national accord seeks to ensure there's legislation in place throughout Canada. If the federal government legislates within its authority, the species in those provinces that have no legislation or haven't signed the national accord will be guaranteed protection, at least within the federal government's authority in those areas, whereas provinces that do what they said they will do in the national accord will not have any federal overlap to fear.

If there's an equivalency clause in this act, any province that fulfils what it has promised to do in the national accord will not have overlap with federal legislation because the federal government will withdraw. That is an ecologically and politically harmonious solution.

I also take your point, though, that there is a need for balance. Certainly clause 46 of this bill - as well as Quebec's act - allows for that kind of balancing. It allows for some flexibility in how we protect the species. I think it's important to remember - and I'm sure the committee understands this - whether we're talking about a bird or a fish or a bear, this bill is not just about protecting that individual animal, because those animals are indicators of an ecosystem. They are simply the canary in the coal mine, and the measures that are taken to protect the one bird that may be affected by a highway will end up benefiting a whole bunch of other species that share the ecosystem with that bird, and we'll end up having far broader ecosystem benefits. I think the public ought to know that this bill won't just save a bunch of individual species, it will end up doing a lot of good for ecosystems in this country.

[Translation]

Ms Guay: It's precisely clause 33 which is of concern to the provinces and the territories, because with the application of this clause, there would be direct interference in provincial jurisdictions. This is a concern. Therefore, I am happy that you raised that point, Mr. Elgie.

[English]

Mr. Elgie: You are asking me whether I think there's an infringement. I think clause 33, as it's worded, creates the potential for overlap between federal and provincial legislation. That's why I'm recommending it be revised.

As it's worded right now, the federal government could pass regulations in a province that already has endangered species legislation on the books, and that doesn't make a lot of sense. I would recommend the legislation require that the regulations under clause 33 be passed, but where the minister and a province find that the province has equivalent legislation, the regulations not apply to species protected under that legislation.

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In my mind that ends up being the ideal solution both for the provinces and, more importantly, for the species. It ensures that there will be legal protection throughout Canada, but it also ensures that those provinces that are already acting in compliance with the national accord won't need to deal with the duplication problem.

Some provinces may say it will take them three to five years to get this legislation out - they just signed the accord. In that case, clause 33 is just a transitional provision. It's a stopgap that will give protection to those species in the three to five years until the province gets its own legislative house in order. In the meantime, there will still be some species left for the province to protect once it gets that through.

Certainly the idea of equivalency - and I've recommended some language, if the committee likes it - seems to make some sense. In the case of Quebec, I would say Quebec's legislation already meets the equivalency test here. Species protected under Quebec's law get stronger protection than clause 33 gives. I think in some ways we agree. I don't know if you see if that way.

[Translation]

Ms Guay: Yes, just about. Thank you.

The Chairman: Thank your, Ms Guay.

[English]

Mr. Forseth, Mr. Adams, Madame Kraft Sloan and the chair.

Mr. Forseth (New Westminster - Burnaby): Thank you, Mr. Chairman.

Mr. Elgie, under the act, how could a private landowner such as a rancher or a cattle producer who leases provincial crown land be affected by the act? First of all, address your mind to the situation of whether they could be affected under the act in various ways and then, if so, the consequences of that. If orders or some kind of caveat can be made against the land where they feel they would suffer economically, how could they be accommodated?

What I'm trying to get at is how we can best ameliorate the fears of certain people who live in the west about the big arm of Ottawa coming down and being an unreasonable intrusion in their lives and their local knowledge of the land. One of the examples that was used was the federal provision of homestead land. The government figured it knew the best thing to do with the land and sent all kinds of people out there to make something out of it. Of course it ruined the land, people suffered, and the environment suffered greatly. So I'm saying the government isn't always wise in its actions.

Looking specifically at the private landowner in the west or someone who maybe has a grazing lease on provincial crown land, how could the act affect them? As a result of that, how could we ameliorate their fears, especially in some form of compensation to overcome those fears?

Mr. Elgie: I'll give you my understanding of the act. The act certainly could apply to private lands or provincial lands in some context. Fish or aquatic species often have habitat that's in the riparian area. For example, a lot of the valley bottom areas in British Columbia are very important fish habitat. Usually it's the biggest problem in mountainous areas or hilly areas.

In terms of migratory birds, the residents and hopefully their habitat will also be protected wherever they are, and those species could well end up on private or provincial lands also.

Clause 33, if it comes into effect, could protect both the species and their residences again, whether they're on private, provincial or federal lands.

We actually had someone do a review of all the status reports under COSEWIC. I don't have the data with me today, but I could get it for the committee if you want it. They found that out of the275 species at risk on COSEWIC's list, either 14 or 15 of them are significantly dependent upon private land. It doesn't mean it's the only place they live, but it's significant to their survival. So only a small number of species are significantly dependent on private land, but for them it's very important. Some of them may be caught by this act.

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As to how the landowners would feel about that, you've heard a variety of views. I won't comment on that.

In terms of how to accommodate them, I guess there are a number of ways. What the bill does now, first of all, is build in a lot of flexibility. If the bill applies to a species on your land, it doesn't mean the long arm of Ottawa reaches out and shuts your land down. What it means is that you have to pick up the telephone and phone your local wildlife service or fisheries office and say, look, we need to work out an agreement or get some type of exemption so that my activities will occur in a way that's consistent with the needs of the species.

That can occur through an agreement under clause 7 or under clause 46, which would be a permit or an agreement. Clause 46 requires that you take reasonable mitigation measures and that you not do anything that will jeopardize the actual survival of the species.

I suspect that most landowners, if not all, would see that as what they would do anyway. Usually just that knowledge will be enough to get them to do that, I think.

But you're right to say that there may be instances where protecting an endangered species involves more than a minor inconvenience and in some way significantly affects the use of provincial or private lands. I don't know how often that will be, but I suspect it will be very rare. In this case, the bill in clause 8 already does provide for the federal government to share the costs associated with protecting endangered and threatened species. So there already is a cost-sharing provision. I would submit that if a landowner or an organization incurs costs in protecting endangered species, clause 8 grants pretty wide leeway for those costs to be shared.

Whether or not it could go as far to say compensation for the land, I don't know. Certainly on the task force we agreed that where protecting endangered species significantly affects the use or value of the land - and every little incursion isn't going to produce a request for compensation, only those few cases where it's really significant - the task force did agree that there should be the possibility of compensation. Whether or not clause 8 is broad enough to meet that concern, I don't know.

There are other programs out there. I don't purport to be an expert on this stuff, but there's one very useful program the government is actually doing away with now that might be worth bringing back to life before it's gone. The permanent cover program was in place in the prairies and Ontario for a number of years. It actually provided landowners with compensation or incentive payments to let land revert to its natural condition. A certain number of dollars per acre were paid as an incentive or subsidy for letting land revert.

That program is being phased out among the agricultural subsidy phase-outs. One of the things the government may want to consider is that this program could be targeted much more narrowly. Over its history it applied to all habitat for any species, wherever it was. If it applied only to the critical habitat of endangered or threatened species you'd get far more ecological bang for your buck. The program would cost only a tiny fraction of what it used to cost, and the ecological benefits would be far greater for the land protected.

If you feel the compensation mechanisms in clause 8 are not sufficient, it may be worth while speaking with members of the government who have some say over programs like the permanent cover program and seeing if they can't be cut back significantly to focus more on critical habitat of endangered species.

One thing we've learned from the U.S. is that you have to work with landowners to make this thing work. Most landowners feel a real sense of pride and stewardship on how they manage their lands, and they don't like having people tell them how to do it. There needs to be a sense that the government is assisting them and supporting them rather than controlling them. Amendments that would reflect that, I would support.

That's not to say, though - and I think landowners would agree with this - that they should be immune from the act. That's not to say that somebody should be free to go out and kill the last member of an endangered species because it happens to live on their land. That species belongs to all of humanity. Just because it happens to be alighting on some person's property.... All the landowners I've have talked to have agreed with that. But it's a question of how the proposed act applies, not whether it applies.

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Mr. Forseth: I have just one supplementary question. You used the American example. You said ultimately 99% of projects go ahead. But I'm wondering at what cost, and whether it's at a cost to the landowner or whatever. Perhaps the projects go ahead, but maybe a heck of a lot of litigation has been going on in the meantime, until the fight is over. Maybe you can address that.

In the context of this bill, the citizen actions and so on, as I read it, it looks as if the citizen can try to bring the government to account when the minister fails to act and so on - the whole business of reasonableness. But is there a provision for citizen to start fighting citizen and trying to get injunctions against an operation, someone who wants to shut down a gravel pit operation or whatever?

Mr. Elgie: I don't have all the data for litigation in the U.S. context. The 99.9% figure refers not to litigation.... The way the U.S. act works is that if you're going to proceed with a proposal that may affect the listed species or its habitat, you have to consult with the U.S. Fish and Wildlife Service, and they then give you advice on what measures you could take to avoid jeopardizing that species. It's 99.9% of those consultations that have resulted in the project going forward. In 99% of those little or no modification has been required. In less than l% have there been moderate modifications.

About the litigation, as a last resort the bill does allow for the courts to be used to ensure it's enforced. The bill, and I think rightly so, requires citizens first to turn to government. As somebody who works for an environmental law organization, I can tell you the last thing anybody wants to do is to take over the job of the Attorney General. No one has the time or the resources to do that.

The role of a citizen suit provision is as a checking mechanism. It's really there like an Auditor General function, if you will, as a way of ensuring as a last resort if a particular government official, when the current party isn't in power or something, is not as enthusiastic about this proposed act -

Mr. Knutson (Elgin - Norfolk): Or in Ontario.

Mr. Elgie: In Ontario there have been 3 enforcement actions in 25 years under that act, and the current government is not likely to be upping that record in a hurry, I would suggest. There simply has to be a way....

Currently what the Ontario government is doing in many areas is effectively repealing laws without repealing them. They are repealing them through non-enforcement. In some ways that's an end run around democracy, because those laws are on the books and they are simply being totally ignored. This type of citizen suit provision really only kicks in in a situation like that.

If you look at the U.S. history of citizen suit laws - I did a paper on this a while ago - what you see is that they were very rarely used until 1980, when the Reagan government came in and reduced EPA enforcement actions by over 50% in the United States. Citizen suit provisions more than doubled. In fact, in 1982 they actually brought more enforcement actions than the Reagan government did. That isn't to say citizens brought a lot; the Reagan government brought so few.

What happened was the government enforcement actions started going back up after that and the citizen suits started going back down. So they did exactly what they were supposed to do. They served as a sort of checking mechanism to make government do its job.

Their value really is in their potential more than in their use. If the government knows the citizen is out there with the right to bring the action, it will bring reasonable enforcement action simply through a request, in most cases, because it's very embarrassing to have a citizen enforce the law when you should be doing it. If that potential isn't there, there's simply no checking or accountability mechanism. I think the experience in Quebec and Ontario, which have endangered species laws.... Really, there couldn't be any better predictor of whether these will be abused.

So yes, there is the potential for litigation. There's the potential for enforcement action. What the court can do through that.... The court cannot order payment of damages. In other words, no one can go to court to make money off this stuff. They're going to lose a lot of money if they go to court, because they can't get damages paid to them. But the court can order somebody to comply with the proposed endangered species act. They can say, this action would violate the endangered species act; you must comply with the act.

So that potential is there.

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Mr. Forseth: Except if someone can go to court to get someone to stop doing something, that stoppage can have a tremendous economic value to the person who's making the application, because they may be economic competitors. You knock them out of the field so that you have the field to yourself.

I think I'll just end it at that point and allow some of my colleagues to further the question.

The Chairman: Would you like to comment on that?

Mr. Elgie: I'm not aware that citizen suit laws in Canada or the U.S. have ever been used by competitors. I've never looked at the issue in the U.S., but I've never heard of it. Theoretically, I guess it could happen, but what can I say? In theory, anything could happen.

The Chairman: Thank you, Mr. Forseth.

Mr. Adams, and Madame Kraft Sloan.

Mr. Adams (Peterborough): Thank you, Mr. Chair.

Stewart, thanks again for helping us. We had a very interesting presentation fromIan Rounthwaite, whom I guess you know.

I have a couple of things. Some people say the legislation is too weak. I think about it in another way. Let's say this is weaker than the Fisheries Act. If I'm a fish, that doesn't matter because there's legislation out there covering those things. On the other hand, Ian kept referring to section 97 of CEPA and the federal powers as expressed in it. I just wonder if you could give us some comments around that. That's one.

The second thing is that people keep mentioning to us that raptors aren't included under the Migratory Birds Convention Act. Is there anything we, now - I don't mean in some other forum - can do about that?

The third thing is that you were addressing the Quebec situation, in which there's strong legislation in place, and that kind of thing. Our chair, however, keeps talking about how one of our purposes in passing legislation like this is to drive mirror legislation. That, by the way, might be by the provinces, it might be by municipalities, or it might be by first nations or whatever. In the design of this legislation, is there anything we can do to actively drive mirror legislation?

Mr. Elgie: Those are good questions.

In terms of the CEPA sections, I probably can't comment to the depth that Ian Rounthwaite did. I've read his brief, but I wasn't there for his testimony.

A couple of things come to mind in CEPA. One of the things in CEPA that seems to be paralleled here is the provision allowing them to deal with international air pollution issues. There certainly is a recognition in CEPA that international environmental issues are legitimately federal in scope, that issues in which the action is taken in Canada and may affect the interests of those in another country are ones requiring federal action. That is quite consistent with clause 33 here. In fact, I would submit that clause 33 needs to go further to really fully protect those international interests.

Are there specific parts of CEPA that you wanted me to comment on?

Mr. Adams: No, because there isn't time. It's just a general thought about that. The point you've already made is a good one.

Mr. Elgie: Yes, well, I won't get into too much, but I think there is one thing CEPA does that could perhaps some day be reflected in this legislation.

For years, the issue of pollution was rigidly distributed between the federal government and provincial governments. They said water pollution and provincial air pollution were provincial, while interprovincial stuff, federal lands and stuff that affects fish were federal. What CEPA said, however, was that there are some types of pollution that are so serious that they're of national concern, and those are toxic pollutants. So what CEPA did was create an over-arching power to deal with the most serious pollution problems at a national level because they affect the interests of all Canadians.

I think the same is true for endangered species. People often say this wildlife issue is provincial, this one is federal, but this isn't a bill that purports to deal with all wildlife, just as CEPA doesn't purport to deal with all pollution. This bill purports to deal with the most serious wildlife issue in Canada: preventing the extinction of species, a far different thing from managing populations of wildlife. This isn't about what level of caribou population we should maintain or when the hunting season should start. This is about ensuring the survival of wild species.

So there's a good analogy with CEPA. Issues that are at the pinnacle of the pyramid of national concern are legitimately and rightfully ones for which the national government must set minimum standards that will apply throughout Canada.

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In terms of raptors, sure, there are lots of things this committee could do. This committee could provide that all migratory birds, as well as their habitat, will be protected by this legislation. It's perfectly consistent with clause 33 and with the protection of migratory birds. The legislation already recognizes that international species are a federal concern, so there can be no question as to whether that's a legitimate federal area. The act already indicates that it is.

Raptors are treated as second-class migratory birds through some historical anachronism of the King of England and the President of the United States not including them on some schedule back in 1916. So yes, you could quite simply say that it applies to migratory birds and their habitat. I'm sure you've heard from constitutional experts far wiser than I am that there is no constitutional impediment to that happening, and that's quite clear.

In terms of driving mirror legislation, ideally the federal government wouldn't have to drive it, but it may be that the federal government, through leadership, can coax other governments to follow in step. I would say that in and of itself, the fact that the federal government is passing this legislation will have some sort of inducement. It put the issue on the agenda, and it has the federal government and provinces debating the issue. Probably the most effective thing that could happen would be for the federal legislation to apply to the full extent of federal authority, because those provinces that do not now have legislation may then have some incentive to pass their own legislation in order that they can then take over the delivery of endangered species protection in those areas of overlap.

Certainly, there may be provinces that say they are quite happy for the federal government to protect species with its authority. I don't know whether any maritime provinces feel that way, for example, but there may be other provinces that would prefer to have exclusive authority over endangered species on their land. So the federal act, by going to the full extent of its authority, may serve as that kind of inducement.

Mr. Adams: Thank you, Mr. Chairman.

The Chairman: Thank you. Madame Kraft Sloan, followed by Mr. Knutson.

Mrs. Kraft Sloan (York - Simcoe): Thank you very much.

I am speaking on my own behalf, but I think there are a lot of other committee members around this table who are very grateful for the work you have done in preparing your excellent, very thorough, and very detailed briefs.

I'd like to talk to you about the issue of advance review. When we travelled out west in particular, we seemed to be sidetracked an awful lot by the American legislation. I think the point has been driven home that we are not passing American endangered species legislation, but as both sides on this issue so ably articulated, there are lessons that can be learned. In my mind, this whole idea of advance review has been a very important one to consider if it removes the possibility of confrontation and litigation, and if it builds support and cooperation.

You had mentioned one possibility of bringing about advance review by amending the law list under CEAA. I'm just wondering what other alternatives you would suggest. From your perspective, what do you see as the easiest and least complicated?

Mr. Elgie: I may run into the limits of my legislative drafting expertise in answering this question, but I'll do my best.

There certainly are a couple of ideas. One is that clause 49 of the bill already deals with advance review to some extent. Right now, clause 49 says that where an environmental assessment is already required under CEAA, you must take into account endangered species and consult with the minister. However, it doesn't actually create an obligation to do an assessment; it just says we already happen to be doing one.

The reality of it is that the vast majority of projects or activities that affect endangered species do not currently require assessment under CEAA or provincial assessment legislation. The majority of those activities escape both federal and provincial legislation because typically it isn't one or two big hydroelectric dams or one or two new pulp mills that are causing species to be endangered. It's the new roads, the development of a shopping mall or a new highway. And it can be logging or mining activities, most of which tend to escape environmental assessment.

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Subclause 49(1) could simply stipulate that there will be an environmental assessment under CEAA for projects that affect endangered species.

I suppose the bill could also make a consequential amendment to other legislation, in this case to the Canadian Environmental Assessment Act and the regulations under it. It could be done through this legislation. It's simply a question of draftsmanship to add a consequential amendment to that effect at the end of the bill. Certainly there are a couple of options for doing that.

I really agree with you. I think that from everyone's perspective that's the win-win issue. If you deal with species problems at the beginning of the planning process before time, money and energy have been invested, you avoid cost, conflict and litigation down the road. For almost all of these things, the problem is that the train has left the station long before anyone dealt with the problem, and that's when you get conflict. So I very much support that idea.

Mrs. Kraft Sloan: It's very important that you've also pointed out to us the number of endangered species in the United States versus the ones in Canada. As Mr. Adams so ably and continually pointed out to our witnesses as we toured in the west, this bill really is protective legislation as opposed to something that's going to come further into the process and therefore make fewer options available and have potentially greater costs. I think that's a very good message that we can get out.

Mr. Elgie: We have a real chance. The U.S. has 835 species in the critical care ward of the hospital right now. Most of our species are just getting into the ambulance for the ride there. We still have time to deal with them. We have options. I strongly support doing what we can now to prevent those species from getting to the critical care ward. It'll be far more effective and far less costly if we deal with the problem now.

Mrs. Kraft Sloan: Thank you.

The Chairman: Mr. Knutson, please, followed by Mr. Steckle.

Mr. Knutson: Thank you very much.

Like my colleague, I want to commend you for your brief and the work you've put into it. I found it very comprehensive.

I just want to talk about some fine points, based on the testimony we heard. We heard from industry groups in Edmonton. One point that seemed to make some sense was raised by a petroleum company. The company had gone through all the environmental assessment requirements and wanted to know whether this act might have some effect halfway into their project. Their point was whether there shouldn't be some linkage in the language indicating that if the company has done everything and acted in good faith, the project couldn't be stopped without compensation. What are your views?

Their main point was that there should be some language linking the various acts, and not knowing anything about environmental assessments, I really couldn't respond to that.

Mr. Elgie: That's a principle I agree with. Certainly it was in the task force report: advance review under this act should be designed in a way so as to avoid duplication and to avoid having to go through more than one process.

There's a regulation under CEAA - and maybe those in the room know it better than I - called the ``one project, one assessment'' regulation, which is either on the verge of being passed or has been passed. It ensures just that. It's not uncommon to have more than one trigger. For example, a water project may affect fish as well as navigable waters and may require two different permits.

The purpose of the regulation is to make sure there's only one assessment for that project. Probably the most rational way to do that is to make sure the permitting and approval decisions under this bill are subject to assessment under CEAA, because then the mechanism through CEAA that integrates assessment will work. Otherwise, you'll have a separate approval and permitting process here. You'll have CEAA, which coordinates assessment and permitting under other federal statutes, and there is a greater potential, I would say, that they would not march in harmony if they weren't linked and brought together through the mechanism of CEAA. So CEAA actually does that. There's also a question as to whether or not there'll be separate federal or provincial assessment requirements.

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There are agreements in place in, I believe, three different provinces, one of which is Alberta and one of which is B.C., at an administrative level, harmonizing the assessment process. The current assessment review, for example, of the Cheviot mine near Jasper Park is a good example. Under that agreement, the two governments have agreed to do their assessment in unison and to use the same information and the same time line. So some of the problems we saw early in the life of EARP and CEAA are being ironed out now and there may well actually be a harmonization agreement within the next few months going even further in that direction.

So there is a mechanism happening under environmental assessment law, federally and federally-provincially, and by tying this bill into CEAA it will then be able to take advantage of those harmonization mechanisms.

Mr. Knutson: Just so I understand, the main thrust is that they could then rely on their environmental assessment as a shield, so to speak, against some endangered species action down the road. As you see the bill now, I take it, it would take some amending language to tie in CEAA.

On my second point, do you think that's a valid concern from industry's point of view, that if they go through the environmental assessment they want to hold it and approve it, they want to hold it up as a shield?

Mr. Elgie: There's sometimes a misunderstanding of what environmental assessment is. I mean, environmental assessment isn't approval or a permit, it's a process. It's simply a process that generates information that then feeds into a decision. Certainly, the information that's gathered in an assessment shouldn't have to be duplicated at some later date, but that information will be used for a number of different permitting purposes. For example, the minister issuing a permit under the Navigable Waters Protection Act may have very different concerns from a minister issuing a permit under the Fisheries Act, who, in turn, may have different concerns from a minister issuing a permit under an endangered species act. So if industry is saying that because we got a federal navigable waters permit -

Mr. Knutson: No. I'm saying you have to have had an environmental assessment to get a federal navigable waters permit.

Mr. Elgie: Okay. They ought not to have to go through the same assessment process twice, that's true. CEAA is actually putting in mechanisms, which are virtually through right now - Mrs. Kraft Sloan may know better than I - that will prevent that from happening through CEAA, and is preventing it.

There are instances, though, for example, where new information comes up. So somebody could have gone through an assessment eight years ago, before it was known that a species was there or before the species was endangered. So CEAA also says that if many years down the road you can rely on the information in a previous assessment, to the extent that it's still relevant you simply have to do the incremental amount of new information. You don't have to start from square one again. So they can, to the extent that the assessment has addressed the issues that are relevant to their project, if you're talking five or six years later. That's built into CEAA, too, by the way.

Mr. Knutson: Yes. It wasn't so much the information but more.... So they embark on their project, they get their permit under navigable waters or whatever, and let's say they spend a number of millions of dollars. Then lo and behold, somebody brings an injunction to stop them and sue them or whatever, and they're saying, look, we've gone through the environmental assessment and we're relying on that.

Mr. Elgie: Environmental assessment is not a kind of ecological magic wand that ensures that everything you do will obviously no longer have any negative environmental impacts. It's a process that depends on the question you ask. So if someone doesn't question in the assessment whether the project will affect endangered species, they ought not to be surprised later on to find out that someone has endangered species concerns.

I guess the answer to that is, if you do a thorough environmental assessment up front, then that won't be a problem. If you do an assessment that doesn't take into account the full gamut of environmental problems.... Right now you can actually get away with doing an environmental assessment that doesn't look at endangered species. There's no specific requirement to consider the needs of endangered species in the assessment. This bill will change that. Clause 49 will require that.

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The only time someone is really going to be able to raise endangered species problems in a way that will have the potential to slow down or maybe even stop a project is if you have a species that's really endangered. A vulnerable species is a yellow light category under this bill, and it's really a management issue. That situation will come up for a company when it's doing a project in an area that has some vulnerable species in it and it doesn't carry out its activities in a way that takes into account the needs of those species.

Let's use the example of logging. In 1985 you do an environmental assessment of logging a big block in northern Alberta and you know you have woodland caribou there and they are a vulnerable species. If you set out your logging plan in a way that takes into account the long-term survival of woodland caribou and their needs, the caribou is not going to move into the endangered category. If you design your logging and do your assessment.... If you wait until the caribou is in a crisis and you keep cutting into areas that are critical habitat for the caribou, then probably in ten years you are going to end up with a situation where the caribou has moved from vulnerable to threatened to endangered and you do have the potential for somebody to say you have to stop what you're doing.

So the answer is that the ``vulnerable'' category is really the yellow light category. It says proceed with caution and you'll be okay.

I can't say it will never happen, but it shouldn't ever happen totally by surprise. They should have had some sense of what they were getting into and really followed the warning signs when they came up.

Mr. Knutson: The most important amendment to this bill would be around critical habitat. Would you say that is right?

Mr. Elgie: The single most important amendment?

Mr. Knutson: Yes. And then I'm going to ask you the second and third, etc.

Mr. Elgie: I would say the single most important amendment is clarifying that the bill applies to all migratory birds and their habitats.

Mr. Knutson: That might be two.

Mr. Elgie: It's one subclause, subclause 3(2)...to ensure it applies to them, because they're not adequately protected by existing legislation.

Mr. Knutson: And the second most important would be...?

Mr. Elgie: To ensure protection of critical habitat.

Mr. Knutson: And the third?

Mr. Elgie: To make the listing process scientifically driven. In other words, to require that COSEWIC listing decisions be reflected in legislation.

Mr. Knutson: By the minister?

Mr. Elgie: Or else just let COSEWIC decide.

It's interesting. Nova Scotia has just introduced an endangered species bill. It has just passed first reading. In their bill the COSEWIC list automatically has legal effect. So in provincial law the COSEWIC list is going to kick in automatically.

Mr. Knutson: And fourth?

Mr. Elgie: To amend clause 33 to require regulations to be passed protecting cross-border species, but also to include an equivalency provision, so provinces with existing laws don't have to deal with duplication issues.

Mr. Knutson: What about amending it to cover transboundary species, such as the grizzly bear in northern Montana and southern Alberta?

Mr. Elgie: You mean international transboundary species?

Mr. Knutson: Yes.

Mr. Elgie: In clause 33 you are already part of the way there. I would simply strengthen and fix up the clause 33 there now. Clause 33 captures not only those species that migrate back and forth annually but those that range across the border. That's important, because their survival in Canada depends on actions in the U.S. and vice versa. So the grizzly bear, the swift fox, the eastern cougar, the peregrine falcon, and all those species will only be protected if the protection is binational. So clause 33 can do that.

Mr. Knutson: If you were to carry on in terms of priority amendments...?

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Mr. Elgie: I would say fixing up the definition of ``residence'' so it's in line with ecological reality, so it isn't just the equivalent of a nest or a den but deals with areas that truly reflect the residence of the whole range of wildlife -

Mr. Knutson: Sorry, on that point, I thought the gist of the recommendations from the environmental groups was it was not so much that we shouldn't protect the residence but that we need to protect critical habitat. You're saying to expand the definition of ``residence''.

Mr. Elgie: In some ways you need to do both. I'm cognizant that the committee may not agree with each of my recommendations. In my view it's fundamental to protect critical habitat. In most cases protecting critical habitat will also protect a species' residence. I suppose there could be situations where residence isn't considered to be part of critical habitat, but that would be rare. If the committee does not give mandatory protection to critical habitat, then residence will be even more important. That will probably be the last retreat, if you will, of a species. So you should at least ensure the residence is protected, if nothing else. I guess that's what I'm saying. It isn't enough, but it's better than nothing.

Mr. Knutson: So you want ``residence'' more broadly defined?

Mr. Elgie: Defined in a way that's in line with ecological reality, that gives you more than just the bedroom of the house you are in three months of the year - the places species really depend on to meet their critical needs of rearing their young, etc. For example, for caribou there's no den but there are critical calving grounds that are very well known in the Yukon. We know where caribou go to calve, and any disturbance during calving season in that area is lethal to the young. It's similar with the piping plover. So it's a matter of getting ``residence'' to reflect the areas that are truly critical places species use to meet their basic biological needs.

Mr. Knutson: On the issue of disturbance, which we haven't mentioned yet as a priority amendment but presumably we will get to eventually, presumably ``disturbance'' has to mean more than just walking across a field and causing some birds to fly away.

Mr. Elgie: It has to have adverse consequences on the species. In some way it has to impair them directly or impair their reproductive success. It has to have some adverse effect.

We've had the word ``disturb'' in the Migratory Birds Convention Act for eighty years. No person may disturb the nest of a migratory bird. Certainly I'm aware of no examples of somebody taking that to ridiculous extremes, such as that whistling when you walk by a nest is an offence. You have to do something that actually in some way adversely affects the nest to disturb them.

Mr. Knutson: So you don't think if we put the word ``disturb'' in.... Are you saying we don't need to define it?

Mr. Elgie: Certainly New Brunswick and Manitoba haven't defined it, the Migratory Birds Convention Act has never defined it, and it has never been abused. There's a long body of case law on that, keeping it within reasonable bounds.

I think people take one or two California judges and extrapolate to the whole judiciary. Judges in Canada tend to be a fairly cautious lot, by and large.

Mr. Knutson: Until Karen gets appointed to the bench. Then it will all change.

Mr. Elgie: There are seven or eight other things that are really critical. I'll give you just a couple of others.

Allowing citizen enforcement action where there's a threat of an imminent offence, where there's imminent harm to a threatened species but it doesn't require investigation, I would say is a very high priority. Without that the citizen enforcement accountability mechanism is really toothless. Somebody can just use the investigation to wait out the opportunity and go ahead.

Mr. Knutson: Let's say I think my neighbour Mr. Steckle is about to drain his marshlands and wipe out some rare bird. I can go to court and stop him.

Mr. Elgie: If there's an advance review mechanism in the proposed act he'll never get to that point, because he would have had to obtain a permit, to go through some sort of advanced consultation saying this is reasonable, and that would be a total defence to any action anyone could ever bring. If the government has actually approved an action, then no judge in Canada would ever say that action is illegal.

In a lot of ways the advance review mechanism.... What the citizen enforcement provision will deal with is situations where somebody should have obtained a permit or got an agreement and didn't - basically somebody who is flouting the law.

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The first requirement will be an investigation request. It will then put them and the government on notice that they should be obeying the law. If at that point they still choose not to obey the law, then yes, the potential is you could bring an enforcement action.

Under the scenario I propose the choice really is between saying you will sit there and watch a violation of the law go by while awaiting investigation under the current scenario or you will allow an enforcement action to go forward. Those are the two choices the committee has before it, I would say. Where there is imminent harm, either you allow the investigation to go on and take as long as it needs while the harm occurs or you don't. It's pretty black and white.

The other two that I would say are important - and the committee seems supportive - are the idea of making sure the existing COSEWIC list is reflected in the initial list.... It seems to me it makes sound policy sense not to start again, but where there is a need, if there are particular species that need to be reviewed, the bill provides for their review. The final one is incorporating advance review into the legislation, in the ways I discussed with Mrs. Kraft Sloan's questions.

The Chairman: I have a few questions of a general and a specific nature, Mr. Elgie. The first one has to do with the federal Fisheries Act. After the amendments of last October, would you still conclude that it is stronger than CESPA?

Mr. Elgie: As I understand it, Parliament has yet to determine whether there will be amendments to that act. It still is stronger. All the amendments do, as I understand it, is allow for the delegation to provinces in order to implement the habitat protection. It's not as strong as it was, but it's stronger.

The significant point is that it's one thing to say the Fisheries Act already has habitat protection, so this bill doesn't need to worry about it as much, but the fact that a species has made it to the species-at-risk list means the federal Fisheries Act hasn't given it enough protection yet. If an aquatic species makes it on this list, the Fisheries Act hasn't done enough for it yet. So the whole goal of this bill, I submit, should be to provide stronger protection than exists under the general wildlife management legislation in Canada. Providing a more rigorous level of protection for endangered aquatic species would seem to be the way to do that.

The Chairman: The next one has to do with the provincial legislation in the four provinces. Do they have endangered species lists?

Mr. Elgie: Yes, they have lists in each case. They are developed at the discretion of cabinet, except for the new Nova Scotia bill, which will automatically reflect the COSEWIC list in law. That's the new one that just got introduced at first reading in Nova Scotia.

The Chairman: After these lists are published, are they then enforced within their respective provinces?

Mr. Elgie: Both the listing and the enforcement record are ``mixed poor''. The two examples of listing I am familiar with are the Quebec and Ontario examples, and on the listing side Quebec has done a very poor job of listing animal species. COSEWIC has said there are 10 threatened or endangered animal species and none of them has yet been listed. Ontario, as I said, has listed only 17 of the 50 threatened and endangered species COSEWIC has identified within its territory. My instinct is that New Brunswick and Manitoba have done a little better than that, but I don't have the statistics on them.

About enforcement, I did a search on this a few months ago, so my information is now a few months out of date, but I could find no enforcement actions ever under the New Brunswick, Manitoba, or Quebec endangered species acts. In Ontario I believe there have been 3 enforcement actions in 25 years. In Quebec's case to some extent that's because they are still developing their list of animal species. The two probably are related in that case. In the case of Ontario and the other provinces one must conclude either that no one has ever disturbed endangered species habitat in those provinces or that enforcement has been less than diligent.

The Chairman: On the non-derogation clause, clause 2, could you think of ways of improving it so as to reflect the realties north of 60?

Mr. Elgie: Subclause 3(2), Mr. Chairman?

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The Chairman: It's subclause 2(2). There were criticisms in Edmonton about the derogation clause.

Mr. Elgie: This would be the clause providing that the Governor in Council may delegate the authority of this legislation to the territories, or...?

The Chairman: And because they failed to recognize the existence of a time already in terms of treaties and/or management boards.

Mr. Elgie: That certainly is not my reading of the bill. I think the bill takes great cognizance of treaties and land claims and management boards. Subclause 2(2) of the bill specifically says it will not derogate from aboriginal peoples. Subclause 36(1) gives an automatic exemption for any activity taken in accordance with the land claims agreement, or similar documents, I believe.

To my mind, that second one goes even too far. There ought to be some room for balance. Even the Supreme Court of Canada in the Sparrow case has said that conservation needs comes first, that the aboriginal right to take a species comes ahead of non-aboriginal rights, but the conservation of that species comes ahead of all interests.

In my sense of it, the bill needs to build in some mechanism to allow that balancing, recognizing that there should be a priority on aboriginal rights, and recognizing that wildlife management boards and traditional knowledge should be used in developing endangered species protection and listing decisions.

The Chairman: There was some genuine indignation in Vancouver and Edmonton with respect to the non-derogation clause, with respect to the fact that it doesn't recognize treaties or land claims or the success of established management boards.

Mr. Elgie: Subclause 2(2) specifically recognizes existing aboriginal rights and treaty rights. Those would be the rights that exist in the Constitution, and those in treaties.

The Chairman: We thought so too, but evidently -

Mr. Elgie: It's a thick bill. If this is the case, I suppose people could be excused for not having read every detailed provision. I've done it, and it's not something I would wish on others.

Paragraph 36(1)(c) says that any activity in accordance with a conservation measure respecting wildlife in a treaty, a land claims agreement, a co-management agreement or a self-government agreement is automatically exempt from the prohibitions in the act. That's the one where I say, in good sense, there ought to be some mechanism for balancing those measures. A lot of those documents were not created with endangered species in mind. Clause 39 specifically does call for consultation. It requires consultation with a wildlife management board in all cases in developing a recovery plan.

The one recommendation I've made in my brief, and one the committee may want to consider, is that there is not a requirement for consultation with a wildlife management board in issuing a permit or making an agreement under clause 46. That may be an area -

The Chairman: Fair enough. Let me move on to some details.

The Federation of British Columbia Naturalists recommended the following inclusion, which I wasn't able to find in your book - namely, to have clause 42 state that all federal departments be required to comply with and implement recovery plans for listed species.

What do you think of that suggestion?

Mr. Elgie: I think it's an excellent idea. It's at a different place than mine. Mine is actually in subclause 40(3).

Australia has almost exactly that wording in its act. It says all federal departments shall comply and shall implement the requirements in a recovery plan.

The Chairman: Next, the definition of ``residence'', as proposed by the Association of Petroleum Producers, pulp and paper, the Mining Association and the National Agriculture Environment Committee, is rather intriguing. I want to hear your reaction to it, because it reads as being more encompassing than what we've seen so far.

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They recommend that ``residence'' in subclause 2(1) be redefined to read:

means a structure or specific identifiable site essential to the survival of an individual, such as a nest, a den, a spawning site, or other similar structure or site habitually occupied by an individual during a significant part of its life cycle when its mobility is naturally reduced.

The first half is very close to your definition, but the second half departs a bit, and it seems to me at least, as a non-lawyer, that it has a broader net. Would you like to have a look at it and let us know your views?

Mr. Elgie: Yes. In listening to you I tried to scratch down some of the key words. It strikes me that that definition actually narrows what's in the bill.

The Chairman: Does it?

Mr. Elgie: Yes. For example, saying that it's a structure or a site seems to contemplate something constructed, and in the last one particularly, if I understood you right, it seems that the site has to be one where the mobility of the species is significantly reduced. That seems to contemplate something more closely akin to a nest or a den.

My acid test is this: would it cover the critical calving ground of a caribou? This would fail that test. It wouldn't be a site like a nest or a den where their mobility is reduced, so it wouldn't reflect the ecological reality of a caribou's life or a bison's life or the lives of many other species.

The Chairman: Fine. Thank you.

I have another couple of questions. One has to do with Professor Rounthwaite's submission wherein he said that the committee should consider making an addition to the endangered species protection action provisions of the bill to make it clear that a court that grants a final order in an endangered species protection action maintains its jurisdiction over the parties to the action until such time as any negotiated corrective measures have been implemented to the satisfaction of the court. What do you think of that?

Mr. Elgie: That makes sense. The bill doesn't say that explicitly. I suppose a court could find it was assumed in the bill. The bill does provide for negotiated restoration measures, and it does provide for a court to approve those restoration measures at the end of the negotiations. But I don't recall seeing anything in there explicitly saying that the court maintains jurisdiction during that time, so to err on the side of caution, it would certainly be consistent with what the bill intends to do.

The Chairman: All right. Moving on to compensation, as was raised already by Mr. Forseth and Mr. Knutson, if I remember correctly, the pulp and paper associations, the petroleum and mining associations, and our national agriculture associations and so on recommended, with respect to compensation, to add a new bullet after paragraph 38(5)(d):

(...the recovery plan...must include:) compensation for the cost and effects of management activities on affected parties;

Mr. Elgie: First of all, that goes beyond the scope of the task force report, which is fine. People are free to recommend what they will. But the task force merely agreed that where there was a significant impact on use or value of land, compensation should be available as an option.

Personally, I agreed to that and I still agree with it. Where a private individual, to protect an endangered species, or in other words to produce a public good that all of us will share in, incurs a significant loss or a significant cost, that loss should be shared by others in society. If someone builds a road a block away from our house, we put up with a little extra noise. If someone changes a stop sign on the street, we put up with it. But if somebody puts a road through my house, I deserve compensation for that. I deserve compensation where the impact is significant.

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Clause 8 does already provide for sharing of costs associated with the protection of endangered species, and my sense is that will get you a lot of the way toward dealing with economic impacts. If there is to be more, then perhaps some sort of program along the lines I discussed earlier, like the permanent cover program, would make a lot of sense.

The Chairman: But that program is on its way out, as you also indicated. So we can't expect very much from there.

Mr. Forseth has a point in pursuing the question of compensation that would have the effect of generating goodwill with respect to the legislation. Do you think that an organization such as Wildlife Habitat Canada, for instance, might be in a position to perform the role of adjudicating compensation?

Mr. Elgie: I shouldn't speak for any particular organization, but there are several wildlife organizations in Canada right now that are already in the business of providing funding assistance for the recovery and protection of endangered species and their habitat. I would say, rather than reinventing the wheel, maybe working in cooperation with an organization like that would make a lot of sense. They have years of expertise; they have the relationships built up already.

I think it's also fair to say that the polling data and other interactions suggest that compensation is not necessarily the only or most important factor. A lot of it is a sense of people being given the dignity and the opportunity to deal with the problem themselves, to have the scientific support provided to help them develop a conservation plan, maybe some tax breaks so they're not taxed at the full value of the land if they're using it for a non-income generating purpose.

I was actually surprised to find on this polling data of Angus Reid that for only 2% of rural Canadians did the prospect of compensation make a significant difference about their willingness to protect an endangered species on their land. Now, that's not to say it's not an issue, but I think it's good not to blow that out of proportion. A lot of it is a sense of wanting to know that Ottawa is not coming in and telling me, who has actually taken a great deal of pride in keeping that riparian zone, or keeping.... My grandfather has been a farmer for years and his kids would never cut the woodlot in the back 40, just because grandad never cut it. So I think a lot of it is simply recognizing the contribution they've made and not presuming to know best.

The Chairman: Nevertheless it is an issue that needs to be addressed, I suppose.

Finally, you gave an answer to this question earlier, I believe, the question of what would be needed to protect the spotted owl as the symbol of this legislation. The amendments you mentioned earlier, are they enough?

Mr. Elgie: The spotted owl, I think, is a good example of two things. It's a good example of why we need legislation that requires the government to act when scientists identify a problem, because COSEWIC identified the spotted owl as being endangered 10 years ago. We've been studying, talking and reporting and considering for 10 years and meanwhile we've lost most of our options. If at the time the species was listed by COSEWIC there had been a requirement to act on that listing...we had a lot of options then. Every year we put off decision the options get narrower. So I think the spotted owl is a perfect example of why we need legislation that requires us to address our problems when they're identified. I would say mandatory listing is a good emanation of that.

In terms of whether it will be protected under this bill it would be clause 33 that would do it, because it's a species that ranges across the Canada-U.S. border. Interestingly enough, actually - this is apropos of nothing - the U.S act actually lists the spotted owl at the Canadian part of its range under the U.S. act. The U.S. act recognizes that the range that begins in northern California stretches contiguously up into southern B.C. and is one uninterrupted range for that species. So for the U.S. efforts to be successful and for the Canadian efforts to be successful in saving the spotted owl, they must be binational.

The owl is also a good example of how endangered species are an indicator of a larger ecosystem. The things you do to save the spotted owl will prevent grizzly bears from moving from vulnerable to endangered. It will prevent marbled murrelets from moving from threatened to endangered. It will prevent Queen Charlotte Island goshawks from the same thing. The spotted owl -

The Chairman: Are you saying there is a domino effect here?

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Mr. Elgie: Yes. It's merely the early warning signal of many other species that are old growth forest dependent that haven't yet made it to the critical care ward but are on their way there.

The Chairman: Are you saying then, in essence, that the spotted owl is protected under clause 33 as it stands now?

Mr. Elgie: No, definitely not.

The Chairman: It would require the amendment that you mentioned earlier.

Mr. Elgie: Yes. There are two problems with clause 33 vis-à-vis the spotted owl. One is that there is no requirement that clause 33 regulations ever be passed. As it stands now, the regulations could not and, based on my reading, may not be passed. Second, even if they are passed they currently do not allow the government to deal with habitat protection for the spotted owl. They can only deal with direct harm and loss of residence. So the tree the spotted owl lives in could be saved, but the surrounding kilometre that it needs for feeding and rearing its young could be razed to the ground. So clause 33 needs to be amended.

There are two ways of doing that, the same two ways as for the rest of the bill. The words ``critical habitat'' could simply be inserted into clause 33, or the more cumbersome way would be to allow for a regulation to be passed implementing a recovery plan and to ultimately produce habitat protection for those species that way. To do that, though, the committee would need to go back and make some minor amendments to subclause 33(2) also.

The Chairman: Introducing the definition of ``habitat'' in the bill, would that help to any extent?

Mr. Elgie: I think so. Critical habitat is defined, but it's defined more narrowly than the task force recommended. The task force said critical habitat is habitat that is essential for the survival and recovery of a species. The current bill says it is essential for the survival. So you could leave the species enough habitat that it's not going to go extinct right now, but not enough to allow for it to recover to a self-sustaining population.

The goal of the bill is to provide for survival and recovery. So that's one change, I submit, that should be made. Habitat definition makes a lot of sense. Certainly the Australian act, the Manitoba act and the U.S. act all define habitat. It does make some sense to do it. I understand the committee has a range of recommendations, and the one I have in there simply draws from the biodiversity convention and Australia's act.

Expanding ``critical habitat'' to reflect the task force recommendation that it include ``habitat needed for recovery'' would be a high priority, I would say.

The Chairman: Are there any further questions?

You have been very helpful. Thank you for your appearance.

The committee will meet again tomorrow morning at 8:30 in room 253-D. We stand adjourned to the call of the chair.

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