EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, January 29, 1997

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[Translation]

The Chairman: Good day. We will now begin consideration of Bill C-65, an Act respecting the protection of wildlife species in Canada from extirpation or extinction.

[English]

This afternoon we have the pleasure of hearing as witnesses Glenda Hanna and Peter Sherrington from the Alberta Wilderness Association; Curt Schroeder and Roy John from Nature Saskatchewan, Saskatoon Nature Society, and Regina Natural History Clubs; and Ms Chambers from the Manitoba Naturalists Society. Please come to the table.

Ms Chambers, I'm told, represents not only the Manitoba Naturalists Society but also other organizations. Perhaps you might be able to tell us about those.

Ms Alice Chambers (Manitoba Naturalists Society): I'm also with the Canadian Parks and Wilderness Society, Manitoba chapter; the Brandon Naturalists Society; Time to Respect Earth's Ecosystem, or TREE; and I'm our Manitoba World Wildlife Fund coordinator. You should have some papers supporting that. Do you have them? I think he photocopied them and gave them to you.

The Chairman: We are glad to have you all. We will try this afternoon to be more disciplined than we were this morning. At 10 minutes I will give you a little signal that you have 5 minutes left, for a total of 15.

We will start with Mr. Sherrington.

Mr. Peter Sherrington (Vice-President, Alberta Wilderness Association): Thank you,Mr Chairman.

Before I start my submission, I'd just like to give you a brief background on the Alberta Wilderness Association. We are Alberta's largest non-profit, charitable environmental organization. We've been in existence for over 27 years, and during that time we have worked with the public, government, and industry to communicate a message of wilderness conservation and to raise concerns of wilderness conservation issues. This includes species at risk.

Our vision, among other things, includes two aspects. One is that there will be a comprehensive system of protected representative wild areas within Alberta, and the second is that we recognize the intrinsic value of nature, which is the value of nature for its own sake. We are delighted that in the preamble to Bill C-65 that is clearly recognized.

We're delighted that the federal government is finally acting on the commitment made under the convention of 1992, the Convention on Biological Diversity. It should be noted that we support the recommendations and observations of the Canadian Endangered Species Coalition, of which we are a supporting organization. This afternoon I would like to emphasize some of those points with some examples more specific to Alberta.

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We are concerned that Bill C-65 has several substantial flaws that will seriously impede its stated goal, that is, to protect Canada's wildlife species from, finally, extirpation or extinction.

On a very general level, one thing the bill does not seem to reflect is that the categories of vulnerable, threatened, and extinct or extirpated form a continuum. They're not step functions; they are a continuum. Before that, you have things in trouble and populations going down. It's a process. The bill seems to think there's something intrinsically magical about endangered or threatened species. They come from somewhere. They are the result of a process. Somewhere, perhaps in the preamble, this should be reflected.

In some cases the condition of endangered or threatened may be because of direct attrition of the species through overkilling and over-hunting. The case of the Eskimo curlew would be a case of this kind. Or it could be due to the severe reduction of its reproductive potential through chemical and other means. Peregrine falcons would be an example of this.

However, for some 80% - you can argue the exact number, but it's an overwhelming percentage - of Canada's species at risk, the cause is related either entirely or in large part to the destruction, degradation, and fragmentation of the species' habitat. The bill makes it an offence to kill or harm an endangered or threatened species, but it does not require that the protection of what is called ``critical habitat'' for such species is undertaken.

In fact, the only provision we can see in the bill is in subclause 34(4), under emergency orders. This regulates and prohibits activities that may adversely affect the critical habitat of species if there is an imminent threat to that habitat. However, the term ``critical habitat'' is not defined under clause 2. Neither is the term ``habitat'', and as was observed this morning, neither are such terms as ``ecosystem'' and ``biodiversity''. These words are used, the word ``habitat'' is used throughout the report, but nowhere are they defined.

``Habitat'' is not referred to at all in clauses 31 to 33, on prohibitions, so it appears the prevention of habitat destruction is only considered in extreme and exceptional circumstances. That is, it only comes into play in emergency situations.

Quite simply put, without wider protection given to habitat specifically, the act will afford very little protection to species at risk and will merely ensure that the list of species at risk will continue to grow as critical habitat and habitat of all kinds continue to decrease.

In summary, the bill appears to address the symptom of a problem; it does not address the problem itself. Endangered and threatened species are the result, again, of process. The process itself is not addressed in this bill.

We feel it is essential that any planned development project that has the potential to affect the habitat of species at risk - and that would include vulnerable in many cases - be subject to full review and assessment up front, as an open process before things start. This will ultimately save time and money.

We are fully aware of the frustration of extractive development industries that invest a lot of time and money in projects only to see them either slowed down or scuttled by environmentalists. If this thing is done up front, it will be much more efficient and will save the situation, which is all too common at the moment, that the amount of money and time that has been invested in a project becomes a lever to exempt the project from further review or from any review.

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The witnesses this morning dealt at length with the scope of the bill, and the chairman summarized the art of the possible at the end of that session. However, it is important to reiterate that Bill C-65 applies only to federal lands and territories, to aquatic species, and to certain migratory birds, and there are serious exceptions within the migratory birds.

Most species at risk range beyond such lands and usually beyond the bounds of any single province. So the bill should be amended to apply to any species at risk whose range crosses one or more provincial boundaries, wherever they may be found in Canada. Provincial regulation should only apply where such legislation is equivalent to, or dare one say exceeds, that of the federal act in all aspects.

It's important that the federal government show leadership in the provision of national standards in this particular case. It is a leadership role that is required, fully recognizing the fact that in operation it's going to need bilateral agreements and multilateral agreements for this thing to work. The federal government has to show leadership.

Bill C-65 as presently written gives too many discretionary powers to the government, to cabinet. Even the composition of the list of species at risk is ultimately decided by cabinet, albeit with recommendation by the competent scientific body, COSEWIC. However, there's no obligation to accept the recommendations of COSEWIC, and neither, as it's presently constituted, do the reasons for rejection of recommended species have to be made public.

Also, although there is a requirement for the production of recovery and implementation plans for endangered and threatened species, there appears to be no requirement to actually implement these plans in a timely fashion.

There are far too many ``may's'' in the bill and not enough ``must's''. There's far too much discretion.

Specifically to Alberta, blanket exemptions are granted under the bill to persons acting for the protection of national security, safety, or health. We have the particular example, which was touched on this morning, of the Suffield military reserve in southern Alberta, a huge tract of land that contains numerous listed species together with many potentially listable species in a large area.

At the present time the military is highly cooperative and highly sensitive, but that's a discretionary thing, and that could change. We ask the question, will there be a blanket exemption under national security for things such as military training, which does not necessarily directly impact on security?

Finally, the success of the act in achieving its stated aims will depend in large measure on the availability of technical and scientific expertise to identify species at risk, to prepare and monitor recovery plans, and to ensure compliance with the act.

The requirement to produce a recovery plan within one year of listing for endangered species and within two years for threatened species presumes that knowledge of the species is adequate for meaningful plans to be produced and implemented. This certainly is not the case for a large number of species on the list at the moment, especially migratory species.

For example, the species that is beautifully illustrated in the summary of the bill, the burrowing owl, has been studied extensively on the Canadian prairies for the last decade or more. Burrowing owls continue to decline precipitously. The Canadian Wildlife Service's prognosis is that the species will probably be extirpated as a Canadian species by the end of the decade, in just four or five years.

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One of the reasons for this is that it's migratory. As soon as that bird leaves the Canadian prairies we know absolutely nothing about its migration and its wintering grounds. Even if we knew everything there was to know about the biology of the bird during its breeding season, we know nothing about the rest, so at best we know 50%. This is not the basis for implementing workable recovery plans, and I think the success of the program to date reflects that.

The sad reality is that both federal and provincial agencies charged with the responsibility of wildlife study, management, and enforcement have been severely cut in terms of budget and personnel in recent years. Without access to such expertise, the effectiveness of even a suitably amended Bill C-65 would be seriously compromised.

We suggest that one way of dealing with this would be to redefine and expand perhaps the role of the Canadian Wildlife Service as a national biological survey. Would that we'd had one 100 years ago analogous to the Geological Survey of Canada. I speak as a geologist/palaeontologist who's had a lot to do with the GSC. I think even resource companies can appreciate the work that's been done there. We have no equivalent agency for biology. The Canadian Wildlife Service deals with certain high-profile species. It doesn't deal with plants. It doesn't really deal with ecology.

The cutbacks are serious: cutbacks in fish and wildlife departments, in national and provincial staff, and in university programs. We need to address the idea of knowledge, what we know and how we know it. Biological studies take time. For the last five or six years I've been working as a field ornithologist, and we're lucky if we spend more than two or three weeks in an area. At best we can define some elements within the system.

Very few studies actually address ecology. We don't even know the elements in most cases. We don't know how, for example, long-term drought and wet cycles on the prairies really affect some of the species that are being affected. We need time to do it.

In the national parks we know something about bears, large mammals. That's as a result of about ten to fifteen years of intensive study, and even now we're just beginning to understand how those things work within this entire cycle.

I think my time is up. Maybe in questions afterward I can address some of those things in more detail. Thank you, Mr. Chairman.

The Chairman: Thank you very much, Mr. Sherrington. You are perfectly on time.

Now we have Mr. Schroeder, please.

Mr. Curt Schroeder (Executive Director, Nature Saskatchewan, and President, Regina Natural History Society): Thank you, Mr. Chairman. Good afternoon, fellow members on the panel here and the committee.

The Regina Natural History Society is one of the two largest organized clubs in Saskatchewan. I will be making a brief presentation on behalf of the society, then I will turn the microphone over to our colleagues in Saskatoon and they will take a different look at the act, and then I will come back and take a view from the provincial organization, Nature Saskatchewan. This is the way we have divided our presentation. It is meant to be complementary and it's not going to be duplicating the effort.

Very briefly, the Regina Natural History Society has about 250 to 260 members and we have been incorporated as an organization since 1933. We're still functioning quite well and we continue to be very active and very interested in this particular legislation.

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Our brief will look at clauses 31, 32, and 33. On the overhead you will see these points briefly alluded to in order to help you get the essence of my points.

Clause 31 deals with the automatic prohibition of killing or direct harming of an individual of an endangered or threatened species. Now, that sounds quite strong, which I think is very appropriate. We're just not certain in our interpretation of that clause whether that also includes other life stages of an individual, whether that be the embryos or the eggs of birds, fish, etc. If not, then that should be included in clause 31.

This is what I want to be sure about. Our point is that embryos should be part of the definition of what an individual is. Possibly this term ``individual'' should be clarified in the definition section. Also, this clause does not make reference to vulnerable or extirpated species, and we think that should be in the clause. It should refer to all designated species, not just threatened and endangered ones.

My second point is that there should be no wounding, poisoning, or collecting. This is also part of clause 31. The clause does prevent harm to individuals, but does it include wounding, poisoning, and collecting of listed species? If not, then we feel those words should appear in this clause, unless we define ``harming'' in a certain, clear way.

I'd like to turn my attention to clause 32 of the bill. There are three points to be made there. Habitat protection should be the same as species recovery. This clause 32 is to ensure that listed species have a place to live; that is, their habitat must remain intact. This kind of protection is absolutely essential if listed species are to be recovered.

The prairie regions of Canada are an example of where habitat loss has been enormous, and this is why these regions contain an undue proportion of threatened and endangered species on the current COSEWIC list. At the same time, however, we recognize that we share this habitat with the species, that people do live and work where these species are found. But we must strike a balance whereby we can coexist in these areas. We have to find mechanisms where we can live side by side, and I think those mechanisms haven't been very well developed to this point.

Clause 32 should require protection of endangered, threatened, and extirpated species. We're not clear whether the word ``residence'' is really a proper word to be used in this legislation. ``Habitat'' might be a better word. I have never seen the word ``residence'' used in any biological studies. It's a term that I see for the first time in this legislation.

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Define ``habitat'' to include those areas where a species normally or for all or part of its life cycle resides, and recognize that these areas are also where people may live and work. I would suggest that we define those areas in the recovery plans, not in the species status reports that go to COSEWIC.

Ironically, one of the pieces of federal legislation, the Fisheries Act, is quite strong when it comes to referring to the protection of fish habitat. Section 35 of the Fisheries Act prohibits the harmful alteration, disruption, or destruction of fish habitat, unless authorized by the minister, and this is not even endangered species legislation. Yet those words aren't really found in our Bill C-65.

So I would suggest that perhaps we look at the Fisheries Act for some guidance in protecting habitat, particularly from disturbance - not necessarily direct destruction, but disturbance as well. It's already in the legislation. However, I do recognize also that the enforcement of the Fisheries Act with respect to this is a problem, and we need to look at how that problem has arisen in that particular act and learn from it so we may apply it to modifications of Bill C-65.

My last point is on cross-boundary species protection. Clause 33 speaks to protecting endangered cross-boundary species from direct harm, but it does not require that habitat of the species be protected. The example we heard a moment ago about the burrowing owl is a good example. We certainly know that from our experience in Saskatchewan. The peregrine falcon is another example.

We need to look at requiring habitat protection on federal lands in this clause and requiring protection on federal lands for all migratory species, including all raptors, that is, birds of prey. Despite over eight years of recovery effort for burrowing owls in Saskatchewan and in Alberta, the species is still in decline.

The last point I'd like to see included in clause 33 is to require the federal government to enter into international agreements with other countries that share the same listed species.

In conclusion, our planet is experiencing unprecedented mass extinction of life, as stated in a recent United Nations report. Biodiversity, with its complex interwoven food chains, is what sustains the ability of Earth to support life. Every species lost by extinction is another step towards the weakening and the eventual failure of the planet's ability to provide an environment hospitable to life as we know it. If we keep ignoring the dead canaries in the mine, eventually none of us will come out.

Thank you, Mr. Chairman.

The Chairman: Thank you.

Mr. John.

Mr. Roy John (Conservation Chair, Saskatoon Nature Society): Thank you,Mr. Chairman. I'd like to continue on.

First I want to explain to the committee that I have been a naturalist since childhood and a professional environmental scientist throughout my working life. I put a brief résumé in with the clerk's copy of my report.

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I'm here today representing the Saskatoon Nature Society. We have 500 people in that society. We serve Saskatoon and the nearby farming areas, and we're just a little over 40 years old.

The first point I would like to make is that we are very disappointed that the current legislation doesn't include all the species at risk. In Saskatchewan there are 27 species at risk, and this legislation will in fact only give protection to two or maybe three species. The rest are all outside federal land.

Endangered species transcend political and legal interpretations, and we can use our most famous endangered species in Saskatchewan as an example, the whooping crane. Two-thirds of the remaining wild population migrate and stage in and around Saskatoon. They do that mostly on private land. The bird itself is protected, but its habitat is not, and in this case it needs that habitat to put down the layers of fat to fly all the way to Texas.

This legislation will only add a few percent to the existing legislation. If you look at the Migratory Birds Convention Act and so forth, you'll find there is some protection for 48% of the species at risk in Saskatchewan. Under CESPA that would rise to 55%, which is a very disappointing increase.

Six of the seven migratory birds that we have on this list do not nest on federal land, and that includes the peregrine falcon. Also, there is a complete lack of protection for hawks and owls, and that's a general concern of ours.

The eighth species that's endangered in Saskatchewan is a plant. It has absolutely no protection under this or any act.

The next point I'd like to bring out is that species in imminent danger need immediate protection, and CESPA does not require this as an action. We need to have words in there to take care of that.

The next point we would bring up is the advance review of projects. We believe any that are identified as having a potential impact on endangered species should be required to have an advance review.

We have a number of concerns associated with COSEWIC.

There is a time limitation on the membership; that should be revised. While we recognize that there should be some change within COSEWIC, you have to recognize that it takes many years to build expertise in the areas we've talked about. We had the earlier example of 10 years' worth of work on grizzly bears. With the current research budgets being so low, there are in fact very few experts around. Although the turnover would be okay, three years is too restrictive and should be changed to something much higher, or maybe not even have a restriction at all.

COSEWIC should be the one to make the decisions, not politicians. When we have a law implemented, and I'll give you the example of criminal law, we do not expect politicians to enforce it. Instead we have trained professionals - policemen, lawyers, judges - who enforce that law. We don't see that we should have politicians enforcing this law. It should be done by trained professionals - in this case, people with an environmental background.

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The next point I'd like to make about COSEWIC is that we don't think the experts on the COSEWIC should have any relationship to their location. That is not a criterion. The expertise lies with individuals, not in the place they live. The COSEWIC membership list is not there to gain political credits; it should be a scientific body, staffed by scientists, giving scientific information.

Finally, I think we should also remove the limitation on non-Canadian experts being available or being able to go on to the COSEWIC panel. Because we share a lot of problems with the United States, if the best person is from the United States then they should be the one we're taking advice from.

I am also the editor of Blue Jay, the prairie naturalist magazine, and we get a lot of input from our brothers across the border. The prairies don't respect that political boundary. The information they generate south of the border is just as useful to us as the information we generate is to them, and I don't see why we shouldn't use good foreign expertise when that's the most appropriate.

For my next point, again we're of the opinion that we need to protect species across interprovincial boundaries. Of the species at risk, 67% can cross interprovincial boundaries from Saskatchewan. Respecting your political sensitivities, Mr. Chairman, our brief says that we expect the federal government to show leadership. We are not particularly interested in whether you do it in a political, legal, or agreement fashion; we just think something has to be done to protect those species that cross interprovincial boundaries.

The next point is that it's the same thing for those that cross national boundaries. We believe the federal government has a clearly mandated responsibility to show leadership in that area in whatever form that may take. I would like to go with the rest of the people here today and say that habitat protection is a key weakness of this bill.

For our summary, we've been following this for a long time and we are certainly pleased that there's been much progress made with the proposed Canadian Endangered Species Protection Act, but we would finally like to urge the minister to act on the recommendations that we and our naturalist colleagues have made here today to further strengthen this bill and make it more effective. Thank you.

The Chairman: Thank you very much.

Mr. Schroeder: Nature Saskatchewan is the provincial organization equivalent to the Manitoba Naturalists Society in Manitoba and the Federation of Alberta Naturalists in Alberta. We publish the Blue Jay, which you heard our previous speaker refer to. We have a long publishing history not only with that particular journal, which goes across the country and internationally, but also with 24 special publications now to our credit, including the most recent one, which is the Atlas of Saskatchewan Birds.

Nature Saskatchewan would like to speak to a few points. The points I'm going to refer to can be summarized as shown in the overhead.

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COSEWIC designations ought to equal the national list. To reiterate a little bit of what was said before, Nature Saskatchewan expresses serious reservations with respect to the listing process, which was originally conceived in the 1995 legislative proposal. We think the change in Bill C-65 is regressive, allowing the minister to override the COSEWIC designation. We think that is not in keeping with the public perception of a fair and honest assessment of endangered species designation.

We have seen some provinces that do have endangered species acts where the minister has not listed species on the list for whatever reason, according to their provincial circumstances. We think that capability is not in keeping with what the public sees as a very key point. We must act strongly with respect to species protection and we must deal with this in a fair, honest, and scientific manner.

The prime reason that we need this recommendation to ensure that there is little or no discretion is that it must be based on science and science alone. If there is any room for discretion, that should be done in events that follow designations, such as in the recovery plan.

Therefore, in clause 30 we would recommend the removal of any discretionary powers that allow ministers to amend the wildlife species at risk as determined by COSEWIC. Interestingly enough, we would recommend that ministers not be able to fail to list, but also we should not allow them to add species to the list. We feel that must be done totally by the COSEWIC process.

Recovery plan equals recovery action. Subclause 42(1) permits the responsible minister to avoid taking any steps leading to the implementation of recovery plans. In view of the intent of the bill and the will of the people as measured by a number of polls, we feel that's not acceptable. Even the National Accord for the Protection of Species at Risk calls for complementary federal and provincial or territorial legislation that results in implementation of recovery plans in a timely fashion. Bill C-65 must be amended to eliminate the possibility of no recovery action.

The next point is that emergency orders equals emergency action. What I mean by that is that Bill C-65 as it's currently written proposes that the responsible minister be authorized to issue a protection order when quick action demands it, but is not required to do so. Here again we would prefer to see that there is little or no discretion with respect to emergency orders, that emergency orders do lead to action.

The next point is about investigation sensitive to species risk. We feel the private citizen, as the bill currently allows, is provided the opportunity to initiate legal action to enforce the act. We commend the government in its innovative approach to this question, this ability for private citizen action. This puts the onus on the public to remain vigilant and gives them a tool to ensure that recovery actions, as proposed, are implemented. We feel that the public does have an obligation and should be made a part of this legislation that results in protection of species. This, we feel, is constructive.

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However, the proposed legislation requires that before a private citizen action can proceed, a government investigation must take place as to the validity of the claim, and if the government opposes the action after the investigation, that action can only be sustained if a court finds the government's response to be unreasonable. Although this sounds very reasonable in its implementation, we feel there is a need to be sure that this process is sensitive to two things: one, the endangered status of the species we are dealing with; and second, the urgency with which the offence that creates any added risk...what that actually is.

The process must be streamlined in cases of urgency. So clause 57 needs to be amended to ensure that this process is carried out in a timely manner.

We also feel that the inclusion of clause 60 in the bill in its present form provides the necessary safeguards against frivolous abuse of legal actions, which we think is very appropriate.

The next overhead - the last few points - shows that exemptions are too broad. This refers to clauses 36 and 46. The exemptions from the prohibitions are provided for any activity undertaken ``for the protection of national security, safety or health, including animal and plant health''. We believe that such blanket exemptions are unnecessary and unreasonably broad, just as the Alberta Wilderness Association has also mentioned. There is no provision to ensure that negative impacts on species are minimized in these cases and that such exemptions be recorded in the public register.

What constitutes a safety factor? What is meant by a threat to health? What animals and plants are being referred to? Since prohibitions and recovery plans in the bill refer to wild species, it would seem that the reference to health of animals and plants refers to domesticated species and cultivars. If so, we feel this gives economic considerations much higher priority than the survival of wild species. Safeguards are necessary to ensure that exemptions in these cases are not abused.

So we've made a number of recommendations: that clause 36 be amended to ensure that the words ``safety or health, including animal and plant health'' be more carefully and clearly defined, and that section 46 be amended so that exemptions from the bill's prohibitions be limited only to true emergency situations.

My next point - require advance review - is that under Bill C-65 projects are required to undergo environmental impact assessments under the Canadian Environmental Assessment Act and they have to be evaluated as part of that act. Although this act already provides for that assessment, we feel it is reasonable to reaffirm this practice in Bill C-65.

The last point is on conservation data centres. Nature Saskatchewan has been unique in terms of the cooperation and partnership it has developed with respect to the operation of the Saskatchewan Conservation Data Centre. A number of jurisdictions in Canada have these centres - not all of them; Alberta does not, Manitoba does. We have been co-managing this data centre in Saskatchewan. We firmly believe in the process that these data centres are required to go through in collecting the biological information from the field, whether botanical or zoological, and keeping an accurate record of the occurrences of endangered flora and fauna. That is by and large their mandate.

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Nature Saskatchewan has felt that for the last 50 years we have been serving as a conservation data centre in a crude fashion, hence the partnership with the government on this particular institution. We feel that adequate and accurate data must be available to government, industry and non-government organizations when planning any kind of development or action that will have a possible impact on endangered species or their habitats.

We feel there is a trend towards recruiting less and less data on the environment and that our ability to monitor what's happening out there is degrading. We feel this must be reversed. One of the ways we can deal with this issue, particularly as it relates to endangered species, is to support the development of these conservation data centres.

I'd like to conclude with a bit of an analogy: defensive driving equals species protection. It might seem a little odd, but I think the analogy is that, and I think it nicely encapsulates what we're doing here today. Most of us here, I believe, are drivers, and most people recognize the value of driving defensively.

One of the key points of driving defensively is to recognize the hazards. When we're driving down the road and we see an obstacle in front of us, we recognize that as something we must react to. Indeed, we see that with endangered species. We recognize the decline of species and we acknowledge that this is a problem that needs addressing.

The second step is to understand the defence. You recognize as a driver that you must avoid this obstacle, swerve or come to a stop to avoid injury or damage. That's the second step, understanding the defence. We recognize here that part of the defence with respect to declining species is proper legislation, and we certainly hope the legislation that comes out of this process will do the job.

The last step is to act in time. Obviously we can't delay our braking action; otherwise, we will cause an accident. Similarly, in this process here we need to act. We can't delay. The problem is there. We know what the defence is. We must act in time.

Thank you, Mr. Chairman.

The Chairman: Thank you, Mr. Schroeder.

In one of your papers you make a reference to five species of plants that are in need of protection in Saskatchewan. Would you put on record their names.

Mr. John: There's the slender mouse-ear cress, the smooth goosefoot, the Tyrrell's willow, and the Athabascan thrift. I'm sorry, the fifth one escapes me. I will send it to the committee.

The Chairman: Fine, thank you. That's for the record. It's very good of you.

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We now have Ms Chambers, please.

Ms Chambers: Mr. Chairman, members of the committee, we have a rather lengthy submission. There's nothing in this submission that we don't think is important, but in the interests of time I'll go through it and simply highlight things. I hope you can follow along with me without any problem.

The endorsement by all of the jurisdictions of all these really great documents should have ensured from all levels of government complete cooperation and a willingness, even enthusiasm, to implement legislation to protect Canadian wildlife species at risk and their habitats. We already really have it in here, so why the provinces couldn't come on side so that everybody would have one piece of legislation is something we don't understand.

Thus, although we are pleased with the federal initiatives in promoting and proposing this legislation, it's a great disappoint that we are reviewing a federal proposal rather than a national one and that the proposed act will only provide a level of protection for certain species that spend their entire lives on lands, water and air that are classified as federal lands. In Manitoba this means scant protection. National parks, national wildlife areas and other land under federal jurisdiction amount to less than 3% of the total area, or about 1% of the forested lands.

The definition of ``residence'' is far too narrow and must be broadened to include at least the critical habitat required for a species' survival. In the case of woodland caribou, protection is required for wintering, calving and rutting areas, and the travel corridors between them. For woodland caribou, what would be protected under the current definition? The definition also needs to apply to groups of individuals or populations so that it is easily applicable to all species.

Clause 3 needs expanding and clarification. Why not all wildlife species rather than selected wildlife species? Why would only these species of birds that are protected under the Migratory Birds Convention Act have their habitats protected on federal and territorial lands? Provinces should not have a problem with an expansion of species covered, since most of them have these species already protected under their wildlife acts. So it's difficult to understand why there would be omissions, particularly when many of these species are at risk.

Subclause 3(2) should be deleted. It's our wish that the federal government use all of the powers available to it to protect species at risk and their habitats.

Under clause 4, compulsory protection should be extended to all wildlife species and their habitats with respect to crown corporations. Actions detrimental to species at risk or their habitats by federal government departments or their agencies must be constrained under this act.

Subclause 6(2) should be clarified to explain the conditions or circumstances under which delegation could occur and what clauses would be eligible for delegation. There should be no delegation of the issuance of permits. This subclause should be deleted. It is unthinkable that the federal government would delegate such a key provision to the provinces - the decisions regarding harm to species at risk or their habitats.

Subclause 30(1) is of great concern. As this is called ``An Act respecting the protection of wildlife species in Canada from extirpation or extinction'', and since COSEWIC is hardly likely to make frivolous recommendations, it's difficult to understand why the minister would not accept and implement the recommendations of COSEWIC. The wording needs amending thus: ``The Minister shall make regulations''.

Subclause 30(2) does not specify that reasons must be given for not accepting the listing. If a listing is not accepted, then in the interests of accountability, reasons for non-acceptance must be given.

We should add ``disturb'' to the list of prohibitions in subclause 31(1) and in clause 32. As per the Manitoba act, expand clauses 31 and 32 to include ``extirpated species'', and add ``required habitat'' to clause 32.

Clause 33 as written will not protect species at risk and should be amended to read: ``The Minister shall make regulations''. As well, ``disturbing'' should be added to paragraph 33(a), the word ``wilfully'' deleted - the Manitoba act just says that no person shall kill, injure, etc. - and wildlife species that migrate across provincial, international and federal-provincial boundaries should be included. Only the federal government can protect migratory species. We urge you to use all of your available powers to do this.

Under RENEW, recovery plans have included cooperation between provinces and between nations. The cooperative efforts between countries to protect species at risk and their habitats must be promoted if species are to survive. This is not just a problem for the species or whose habitats cross international provincial borders but also a significant problem for federal lands where adjoining or surrounding lands are not managed to ensure the protection of the ecosystems of the core area.

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Riding Mountain National Park, also designated a biosphere reserve, is a prime example of the need for this proposed act to ensure protection for species that cross federal-provincial boundaries. The stresses on Riding Mountain National Park, as outlined in the State of the Parks, 1994 Report, which is attached to our submission today, shows the loss of habitat due to agriculture and the loss of forest cover. If you look at that map with the loss of forest cover - this only goes to 1993. When I talked to the forestry people, they said that at the turn of the century this was solid forest cover. By 1972 it looked like this, and by 1993 it looked like that. That was before L-P got their licence and started taking wood off private lands. If you had one of these in 1997, it would be significantly different from what is here, because they were logging right up to the edge of the park.

As a result of concerns about loss of genetic variability and in-breeding, Riding Mountain National Park has started genetic testing of elk, moose and wolves. Large mammals such as elk, bear, wolves that dare to roam outside of the park are vulnerable to poaching, hunting or even poisoning. Although there's more than enough food sources to support a large wolf population, the 1995-96 estimation was less than 30, down from an estimation of 120 in 1975.

The lack of protection is also significant in attempts to reintroduce extirpated species into the park. Pine martin and fisher reintroduction programs are ongoing at Riding Mountain National Park. Encouraging parks personnel to spend scarce dollars and time on these programs only to have species killed because they lack protection when they venture out of the park is very discouraging for everyone.

With the new proposal for a Lowlands National Park, the situation at Riding Mountain National Park will be repeated, only more so. The proposed areas are small and fragmented. If you have a look at this map, this long pointed section here is already crossed by transmission lines, roads and all kinds of things. We are going to have another all-weather road, which is also going to go through that area. These are the proposed loggings all around this edge that are going to occur in the next 11 years from Repap. And the same goes for the more northerly section up here.

Proposed areas are small and fragmented to begin with, chosen purposely to avoid lands of high mineral and forestry value, and the amount of logging, roading and bridging that is contemplated just outside of the proposed areas will once again result in isolated populations. Transboundary protection for species is needed, not only to protect species at risk but to prevent further species from becoming at risk. Preventive programs are much more cost-effective than trying to restore species and their habitats.

As for ``Application of Prohibitions'', subclause 36(1) is far too broad - limit to emergency activities. Again, actions by the federal government departments and agencies must be constrained under this act. There's no rationale for not following normal channels for approvals in situations other than emergencies. It appears that activities utilizing pesticides regulated by the Pest Management Regulatory Agency would fall under paragraph (a) and be exempt from scrutiny. It took many years and a great amount of logging to restrict the use of carbofuran, known to be detrimental to the survival of endangered burrowing owls. It is not at all apparent that the former lengthy process would be changed through passage of this bill.

A recent example, the long-term licensing of aerial spraying of Roundup for pre-harvest use, if approved, could have drastic effects on the thin lines of shelter belts - what they call the ribbons of habitat - which provide much-needed habitat, food and shelter in otherwise cleared agricultural landscapes. Attached are some of the Manitoba concerns regarding this use. There must be a method of ensuring cooperation and consideration of the effects of the decisions of other departments on species at risk so that one department is not cancelling out the work of another. Public accountability must be ensured through publicizing the reasons for decisions made under this clause.

Next is ``Recovery and Management Plans'', subclause 38(4). Surely if a scientific panel of experts believes that the recovery is technically and biologically feasible, the responsible minister should implement that advice. The public should have the opportunity to review and comment on the minister's reasons for rejection.

Under ``Agreements and Permits'', clause 46 is quite vague. Under what conditions would an agreement be made? There must be limited occasions on which this would be initiated and they should be written into the clause.

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Let me move to the bottom, clause 77, under ``Offences and Punishments''. This needs to be amended to ensure that penalties under this act are at least equivalent to those under the federal Fisheries Act. There is no rationale for doing otherwise.

I wanted to speak about some related concerns on the National Accord for the Protection of Species at Risk. It has already been stated that there is a danger that in developing complementary legislation and programs, there will be excuses for provincial, territorial acts and programs to duplicate the weaker areas of the federal legislation. Strengthening Bill C-65 will ultimately lead to stronger provincial protection of species at risk and their habitat.

Of course, the other concern is that it is only an accord, and just like all the other federal-provincial-territorial strategies, accords and policies, it is not binding, nor is it enforceable. It is so much easier to commit through signatures to these documents than it is to actually implement them. Manitoba's record of implementation of the other documents listed previously is abysmal. The federal government has no capacity to report independently on the progress of implementation, and it is completely dependent on information given to it by the other jurisdictions.

Let me turn to the Manitoba Endangered Species Act. Although Manitoba's act has been in place since March 1990, there have been no prosecutions under this act. No new resources were allocated to implementation or enforcement. If any of you watched the recent Nature of Things program depicting the massive slaughter of pelicans and cormorants in the islands of Lake Winnipegosis in Manitoba, then you will be aware of the lack of enforcement of wildlife protection in Manitoba. There are some articles in here.

The Manitoba act is a listing process only. There are no compulsory recovery plans. The minister may enter into agreements to conduct biological investigations, implement remedial programs, or prepare status reports. The act does not include vulnerable species.

As far as the listings themselves are concerned, the lists have been very brief. Changes this past spring added six extirpated species - there were none before - and two endangered species to double the list of species. Well, this now includes eight endangered and two threatened species. These lists are attached, and there are no surprises on the list, but the surprises are the species that are not listed.

The Manitoba Endangered Species Advisory Committee is not at arm's length from the minister. It acts under his direction, is appointed by the minister, and only a majority need to have scientific expertise. The decision to list is discretionary. No regulations have been made under the act. As well, the minister can exempt development from the application of this act with no mention of a public report, input, or appeal. Fines are minimal.

Despite its shortcomings, the act is superior to the federal proposal in several areas. The advisory committee may advise on species that are threatened, extirpated or extinct, or whose habitats are threatened. Prohibitions include killing, injuring, possessing, disturbing or interfering with the species; destroying, disturbing or interfering with the habitat; or damaging, destroying, obstructing or removing a natural resource on which the species depends for its life and propagation. In all these cases ``species'' refers to reintroduced as well as endangered, threatened and extirpated species.

Overall, despite our having endangered species legislation for close to seven years, there is no discernible difference in the way activities are carried out in Manitoba that can be attributed to the act. If the act were to be enforced, the results would vary. As long as pre-surveys are not necessary for developments to take place, as long as the number of activities are excluded from environmental assessment, as long as funds are not allocated to enforcement, as long as there are no compulsory recovery plans, it will be impossible for the Manitoba Endangered Species Act to provide protection to species at risk or to other species either.

The next issue is the protection of species in Manitoba. Protection of species requires the protection of habitat, the ecosystems upon which they depend for their needs. Habitat loss is the biggest threat to present species at risk and to creating further species at risk, and Manitoba habitat loss is continuing. Marginal lands are still being cleared for agriculture. Urban exodus is a very real problem in southern Manitoba, and housing developments cover prime agricultural land.

According to the 1991 federal state of the environment report, up to 98% of the wetlands in the Winnipeg region have been dredged and drained to make way for urban growth, and this is continuing. Tall-grass prairie occurs in less than 1% of its former area. The provincial government is determined to increase forestry activities to even the most remote areas of the province, increase industrial agriculture, and promote mining and oil and gas exploration and development.

The recently concluded forest management agreements between the province and -

The Chairman: Because of the importance of what you are reading, and the fact that the audience cannot follow you, I invite you strongly to please slow down. You're reading some very important paragraphs here, and their impact is weakened by your speed, so please keep that in mind.

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Ms Chambers: Okay, I'm so afraid the clock will go off and I won't be finished.

The Chairman: Take your time.

Ms Chambers: Okay.

The recently concluded forest management agreements between the province and Louisiana-Pacific and Repap both include forest management of the provincial parklands within their licence areas, and both have land withdrawal restrictions of 0.5% over a 10-year period. Compensation to industry is assured for any increased costs.

I've included several pages of the forest management agreement here. So on the top of page 21, you can see that:

The Company shall be entitled to use those portions of timber resources within the limits of Provincial Parks which are included in FML3

It's the same for Repap. At the bottom you'll see that over a 10-year period from each FMU you can only extract 0.5%.

Manitoba is really lacking in the protection of representative areas. We are never going to be able to achieve representation. There are many areas where they have already admitted there's no possibility because of agriculture and development.

In these areas it is going to cost the taxpayers an arm and a leg to come up with a protected area of any significant size at all.

The management plan for the Bloodvein River, a Canadian heritage river, called for buffering and land use control to protect the wilderness values and integrity -

The Chairman: Would you please come back to where you stopped. You stopped at the Pine Falls Paper Company, but you didn't finish that paragraph.

Ms Chambers: Okay. The Pine Falls Paper Company already had a licence for logging in Nopiming Park. It obtains wood from at least three provincial parks, Whiteshell, and Duck Mountain on the far western side of the province as well, both within and outside of its forest management area.

At present negotiations are under way to expand the Pine Falls forest management area. They want to triple their production. There are no protected areas between Atikaki Provincial Park and Wapusk National Park, no land use planning, and no public input into the present negotiations. Only 40% of the wood supply for this mill has gone through an environmental assessment.

Management planning for the Bloodvein River, a Canadian heritage river, called for buffering and land use control to protect the wilderness values and integrity of the river, a river flowing through an area that is the most significant and representative area of the central boreal upland in Canada, with nationally and internationally significant natural areas. The 1982 study document calls for a four-kilometre buffer along the narrow arms extending outside of Atikaki towards Lake Winnipeg.

Instead of the one kilometre moving to two kilometres that was mentioned in the management plan, the buffer is 250 metres, and less than that in some areas, with Pine Falls allowed to log right up to that narrow border. There has been no environmental assessment of this logging.

An all-weather road is sneaking up the east side. No pre-surveys were required for the lake that was constructed during 1996. This proposal was submitted in December. They wanted to start work in January. No information at all was included.

When the licence was issued the department could not even tell me how many streams that road was going to cross. They had no information. This road, the next step, has been a bridge across the Bloodvein. This road will change that area forever, and will mean significant effects on the wildlife in that region.

Manitoba is also now going into huge hog farms in a big way. The premier recently stated that by the year 2000 we could be looking at having 10 million hogs with less than significant environmental damage. I think our politicians really haven't a clue about what happens in the countryside.

A small number of ecological reserves, 13 totalling about 57,000 hectares, with two-thirds of it in one lake reserve at the far northern boundary of the province.... It really is the far northern...it is right up at the very top. It is hardly being threatened up there, but two-thirds of our ecological reserve area is in that one small reserve up there.

They do offer the highest level of protection. They protect important isolated numbers, and communities of species and habitats at risk. Unfortunately, progress in designating new ecological reserves has been extremely slow. No new reserves have been declared since 1991.

Bat conservationists have been working for years to ensure that some of the bat hibernacula are given protection - the most northerly known hibernacula for the little brown bat. Contrary to the announcement in the July 1996 eco, the newsletter of the Canadian Council on Ecological Areas, although promises are made of impending announcements for the new reserve to protect this habitat, conservationists are still waiting and the loggers keep logging. Some of those sites have already been logged over. It's limestone, so it's very fragile. You don't always know where the caves are from just walking along the surface; you have to know where they are. Unfortunately, no active bat hibernacula are included in the proposed Lowlands National Park.

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One of the continuing problems in conservation of species in Manitoba is the lack of data and the lack of funding for research and data collection. The establishment of the Conservation Data Centre, with a focus on collecting, tabulating and organizing data on wild species across the province, has been a most worthwhile first step. A welcome addition to Bill C-65 would be a section setting up a national data centre to facilitate and coordinate data collection across Canada and to protect, store and make available the data from across the country.

The critical wildlife habitat program has encouraged partnerships with other jurisdictions and with national and local conservation groups. The Manitoba Naturalists Society has been an active partner in this program and the success of the tall-grass prairie preserve in southeastern Manitoba is largely due to the many hours of volunteer labour contributed by our membership. The area is being managed on an ecosystem basis to protect all species and their habitats and has a wonderful progression of wildlife species throughout the year. Farming and grazing are part of the management techniques and leafy spurge eradication programs are in place.

This area is home to several endangered species, the most notable being the western prairie fringed orchid. This is the only Canadian site for this plant. There are between 3,000 to 4,000 plants in that area and it's not known anywhere else in Canada. There is also the small white lady's slipper. A number of nationally rare plants are also found in the preserve.

Although it was a Manitoba minister who signed the Commitment to a Network of Protected Areas, Manitoba has fallen far short of implementing the commitment to represent our natural regions in protected areas in Manitoba. It did announce four large northern parks in 1995, placed to ensure no conflicts with potential hydro or mineral development. That has increased the percentage of land in protected areas from 0.6% in Riding Mountain to about 4.5%. This made the statistics look better but did nothing to protect habitat and species in natural areas in the southern half of the province, where the possibility of attaining representation goals is unlikely - in several natural regions it is impossible.

Despite the lack of natural lands, the province still licenses developments that will destroy potential protected areas. The licensing of a ski hill development in tiny Asessippi Provincial Park is the most blatant of these. A 22-metre mountain is to be built on the only undisturbed example of a glacial meltwater till in a natural region, with no representation at all. The area presently provides habitat for many neotropical birds and is an important crossover location for both northern and southern migratory bird species. Habitat protection is not a priority for the Manitoba government.

Manitoba is the only province to allow, and even encourage, full-scale industrial resource utilization in provincial parks. In fact, most of our provincial parks would be more appropriately labelled as integrated resource management areas. This booklet you have is a system management plan. Until this time, we have had no legally protected areas within our provincial parks. The idea was that without affecting any of the resource management capabilities - they were not to be restricted at all - it would put some of the closed zones under legal protection from mining, logging, oil and gas or whatever. So we have gone through this system plan this year. It's a park plan.

If you look at Grass River Provincial Park on the map, I think few persons could believe that designating less than 2% of a park to a protected area fulfils the stated purpose ``to preserve areas that are representative of''. All that will be protected is one lake with woodland caribou calving islands and a small unique palsa hazel feature.

With 82% of the park designated as resource management, the park is littered with mining claims and is open to forestry across much of the area. The 17% allocated to recreational development can also accommodate resource extraction as long as it can be hidden from the recreational areas. This is the most extreme case of resource use zoning, but other parks are also primarily open to resource extraction.

In Nopiming Provincial Park, 22% of the area is allocated to back country, mostly in recognition of the needs of our most southerly woodland caribou herd. It used to roam down into Minnesota, as shown on the caribou range map I've included. This herd has been slowly pushed farther and farther north.

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Although there's a recognition of the importance of maintaining this herd, the prime calving lakes are not free of fishermen and motor boats. There's no protective corridor between their summer and winter habitats and it's not known whether they stray in and out of Ontario. This park is riddled with logging roads and forestry activities, and mining exploration and development are encouraged and subsidized. For most of our major provincial parks, the largest planned use allocations....

The Chairman: Excuse me, Ms Chambers, this is most interesting material and I congratulate you on putting it together. I know you are speaking on behalf of several organizations - CEPA, the Canadian Parks and Wilderness Society, the Endangered Species of Manitoba, Time to Respect Earth's Ecosystems, the Brandon Naturalists Society and so on. Could I perhaps ask you, because we are now running really short of time, whether you could move on to the conclusions and allow the members to perhaps read the balance of your most interesting paragraphs?

Ms Chambers: Maybe I could just say one thing about the sturgeon. They are looking at putting it on the endangered species list, but to save the sturgeon in Manitoba will require the cooperation of not just Manitoba but the federal government and the Saskatchewan government, because there are hydro developments on the Saskatchewan River. One of the reasons why it's in trouble in Manitoba is because of hydro development and overfishing. But this is clearly a species the federal government needs to be involved with and other provincial governments as well.

I hope you'll read what's in here at some point. I'll go to the conclusions.

The Chairman: Circulate what you have written to our Manitoba colleagues who are not members of this committee. I'm sure we will want to do it for our respective parties.

Ms Chambers: In conclusion, the need for a strong national endangered species legislation is obvious. Species do not respect boundaries and no one level of government has the capacity to monitor and protect species at risk or to enforce legislation.

Legal opinions have insisted that the federal government has considerably more jurisdiction than it is using in the area of transboundary effects. The proposal allows for far too much political discussion in protection decisions. It does not provide you with required protection of all species at risk or their habitats. It does not promote an ecosystem approach to protecting species.

Does the proposed Canada Endangered Species Protection Act fulfil the provisions of the Convention on Biological Diversity? If you compare this paragraph to the provisions I put on the first page, I think you will see it does not really fulfil the provisions very well.

Will the proposed legislation help species at risk in Canada or in Manitoba in particular? If the legislation does not apply to all species, if it applies to only a small percent of the most threatened lands and waters in Canada, if it does not address habitat or transboundary effects, and if COSEWIC recommendations are not binding, the proposed act is unlikely to succeed in saving a high percentage of species at risk across Canada or in Manitoba.

As you can see from the description above of just a few of the enormous habitat-related problems in Manitoba and the lack of political will to address or lessen the problems, species in Manitoba will not receive the protection they deserve. Without very strong protection measures, a great deal of cooperation between jurisdictions and the participation of a knowledgeable public, Canada will have may more species at risk. In the end, this will put our human species at risk.

Recommendations of this standing committee can make a considerable difference to the effectiveness of this legislation. It's our hope that you will make strong recommendations to strengthen the proposal to ensure that it does indeed protect Canada's endangered species and their habitats. In trying to persuade your colleagues in Parliament to support a much stronger act, the following quotation from RENEW 1994 may be of assistance:

The varied forms of Canada's wildlife create and maintain soil, recycle nutrients and play a critical role in maintaining the balance of oxygen and carbon dioxide. Thus, wildlife and the ecological services they perform have made it possible for humans to exist on Earth. In economic terms, these functions provide billions of dollars for the Canadian economy.

I would just like to go back to one small point. Another deficiency of the bill is any reference to education, and by that I mean public education, media education, industry, business and public sector education, including the political decision-makers. Unless the decision-makers understand the economic benefits as well as the ecological, cultural, esthetic, intrinsic, traditional or food values of preserving species and their habitats, Canada has no chance of protecting species over time.

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The Chairman: You couldn't have put it better. This material is excellent. Congratulations. As I said, we will certainly circulate it with our Manitoba colleagues.

Now, we have to make a quick round of questions. Who would like to go first? Mr. Forseth,Mr. Adams, and Mr. Steckle. Mr. Adams.

Mr. Adams: Thank you, Mr. Chair. We really appreciate the presentations. In virtually every case we have more written material than you presented and we understand that; we will make use of it all.

A number of you, in fact probably all of you, mentioned this business of trying to deal with some of these matters before the vulnerable stage. I think, Ms Chambers, you mentioned that the Manitoba act doesn't have the vulnerable category. One of our reasons for trying to move with something at this time is to try to get ahead of the game before things are as bad in Canada as they are in the United States, and in the west as they are in the east of Canada.

I wonder if any of you or all of you could put your minds to that. Apart from some sort of, as one of my colleagues said, ecosystem act in which you protect everything in general, what might we do? It has been suggested to us that there are indexed species. It has been suggested to us that all of the species on the list are in fact canaries, as I think you, Mr. Schroeder, said. I wonder if you could put your minds to how we might deal even more than we're trying to do here with the preventive side of these things before leaving it until a species gets on the list.

Mr. Schroeder: Perhaps I could start. It's a very good question and one that we would desperately encourage not only our own organization but other organizations and governments to think of in a more proactive than reactive manner. In fact, this legislation, I think, is more reactive than proactive. We need to start somewhere. Perhaps this is where we start recognizing that being ahead of the game is going to be much more effective in terms of species protection, but also in terms of the cost of recovery.

Certainly, I know from firsthand experience with the swift fox recovery plan, which in fact I drafted many years ago and have been involved in personally since almost its inception, that one of the outcomes of this recovery of an extirpated species is the recognition that the cost of recovery is enormous. One of the lessons we've learned is that clearly, if endangered species protection is going to be done it ought to be done so that we don't have extinctions in the first place.

I think we need to slowly move toward that recognition. Certainly, the provisions in the bill that refer to advance review are a step in the right direction. We need to take that a little further and encourage everyone to plan ahead. In order to do that, though, we need to have information. We need to monitor populations. We need to know that they're in decline in the first place so that we can act if necessary. So there are a number of needs that we need to go through.

Mr. Adams: Could you comment on that in the light of your national biological survey?

Mr. John: Yes, I'd be pleased to. Information is critical. A lot of the species that are on the list are there because we happen to know about them. There are many species that would be potentially listable, but work hasn't been done, the expertise doesn't exist.

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Might I just digress very slightly here? During my work in the last five years - and I've been working mainly in the Cordillera all the way from southern B.C. up to the northern Yukon - one of the things that strikes me as a field ornithologist is that when we go into areas, in just a week we find out things that just blow us away. I mean, these are not subtle things. These are major elements of a system that we don't know about.

For example, five years ago I found a migration of golden eagles that passes within 10 minutes of Banff Townsite. This involves 6,000 to 8,000 birds that migrate twice a year through that area over a 6-month period. Previous knowledge in the park of migratory golden eagles, according to the park by physical survey, stated that in the spring a maximum of four birds go through there a day, and in the fall nine birds. If there was ever a good illustration of the precautionary principle, this is it.

We can't make decisions on anything without a good knowledge base. Many provinces - Saskatchewan is an exception - do not have a central information database. We haven't even done, if you like, the basic mapping of what we have, that is, the bricks in the building, let alone how all these bricks are connected. That's the really difficult thing. We still haven't defined the elements. I always tell people ecology ``ain't rocket science''. It's far more complicated than that. Until we can argue on a reasonably empirical database then we're talking abstracts. We're talking metaphysics rather than hard science on both sides of the argument.

Again, I'd reiterate the need for a central data-gathering base. We can't make rational decisions unless we have data.

Much of the work that's being done these days is being done by consultants specifically for a client. This never enters into the public domain. Work is done but it's never seen. So we need to gather this in one place, where it's available for everybody so we can all have a kick at it.

Thanks, Mr. Chairman.

The Chairman: Thank you, Mr. Adams.

Mr. Steckle, followed by Mrs. Kraft Sloan.

Mr. John: Mr. Adams, can I just add a very important point? There are sets of data that do exist that can be used. The difficulty is in pulling them into a central agency. Right now on the Internet some of that is available in a very easily readable form. I think it answers your question for birds, not for other species, in that you can take what we consider to be a common species and look to see whether it is declining in Saskatchewan, declining in North America, whether it is increasing or what it's doing. There is a set of voluntary mechanisms in place, but it has only been in the last couple of years since that data has been pulled together and has been readily available. I don't know of similar instances for mammals, insects or plants, and the database for other species like lichen and mosses is negligible.

The Chairman: Thank you, Mr. John.

Mr. Steckle.

Mr. Steckle (Huron - Bruce): I should point out for the benefit of those who are here as witnesses this afternoon that we do share an interest in this subject or we wouldn't be here.

Alice, for your information, I come from rural Ontario and I've spent a great deal of my time in the swine industry. Indeed, as politicians we have to adjust to the new environment that we're in, but I can assure you that some of us do know something about that industry and the implications.

The question I have, and I can't for the life of me understand.... We know that certain wildlife species are transboundary and they're migratory by nature. That creates a problem for control. But when it comes to the species, you mentioned two of them on page 12; when it comes to the flora and fauna, you mentioned the prairie fringed orchid and you mentioned the small white lady's slipper. If this species is becoming almost extinct, why are we not taking that plant and taking it somewhere else - perhaps to Ontario?

We know that certain species do not necessarily have to grow.... The B.C. fir can also grow in Ontario. Maybe it won't get to be six feet across, but it'll grow in Ontario.

Ms Chambers: There's this thing called introducing exotics. I don't think -

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Mr. Steckle: Maybe I'm out of my field when I ask that question, but I'm going to tell you -

Ms Chambers: Generally speaking, plants grow because an association of lands, climate and geology supports them. That's their natural environment, and they have interconnections with the other species that also live in that area. Perhaps they create pollination sources for some butterfly or moth or something like that. You can't just transport these things all over the country and hope to do that.

Mr. Steckle: Have we attempted to do that?

Ms Chambers: I'm not sure why we would really want to do that. Really, the idea under the Convention on Biological Diversity is that you first protect species in situ, which means in their natural habitat, not in some transposed habitat.

Mr. Steckle: We did it with the swift fox, we did it with bison, and we've done it with various other species of wildlife. I understand your argument, but until it's attempted...and this is something that doesn't cost a lot of money. Government can't do everything. And judging from the amount of material you have here today, you have a tremendous society and you do a lot of work with this. I just wonder why that hasn't been attempted. It should be attempted before we can make the analysis that it won't work.

Mr. John: Some of that work has been attempted. You have to understand that orchid germination takes place in a symbiotic relationship with a particular species of fungus. But we don't even know what the fungus is, so there's a problem. Most of the terrestrial species of orchids are very difficult to germinate exteriorly. Some work has been done on mirror cloning, but it has proven to be very difficult to get the mirror-cloned orchid to then adapt to a soil regime, and it's in part because of our ignorance.

There are very few cases of good transplants of terrestrial orchids. It has been done for one or two species, but not very often, and it's been for the more robust species rather than those that have very precisely defined environmental requirements.

Let me add the same caution: if you start to introduce species into one place from another, you have to know what you're going to upset as well as what you're doing for the species you introduce. We've played that game too many times with mostly disastrous results - not always, but mostly.

Mr. Steckle: We do have a variety of lady's slipper in Ontario. I have it on my property. I don't know how it got onto my property, but it's there.

Mr. John: Are you in Huron?

Mr. Steckle: Yes.

Mr. John: I suspect, then, that it's the yellow lady's slipper, and that's one of the most abundant ones. I probably saw 10,000 of them last year.

Mr. Steckle: But maybe it should become acquainted with this western cousin.

The Chairman: Thank you.

Madam Kraft Sloan, please.

Mrs. Kraft Sloan (York - Simcoe): Thank you very much. I think mainly what we've learned on this committee is that when you start messing with Mother Nature, you're in a lot of trouble.

A voice: Parent Nature.

Mrs. Kraft Sloan: Parent Nature? Well, there are sisters and brothers out there and mankind and humankind, but anyway....

I just want to get back to the regional representation issue, because this is how the legislation reads: ``membership that is broadly representative of all regions of Canada'' and ``members are not to be appointed as representatives of particular regions or interest groups''. Do you still have difficulty with that wording?

Mr. John: We don't think there should be any reference to that at all. If all the best people come out of the University of Calgary or the University of Manitoba, so be it. This is not a regional issue. This is a national issue and we should have national experts.

Mrs. Kraft Sloan: Are there any other opinions from the panel? Ms Chambers.

Ms Chambers: My only qualification is that they would have to know something about what is happening in the other provinces. They would have to know what species are present and what their status is in the other provinces.

Mrs. Kraft Sloan: One of the things I'm so pleased about is that we've been able to come out here. We were in Vancouver and now we're in Edmonton hearing from local witnesses. Certainly, stories are a little different. Essentially, the principles are the same and the concerns are the same, but when we start to hear about how local ecosystems are affected, depending on the species, depending on the nature of the ecosystem itself, it's not.... This is a national piece of legislation, but we also have to understand how this national legislation is going to have local effects, whether we're looking at an ecosystem that is predominantly aquatic or predominantly desert or predominantly forested or whatever.

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It also has been suggested to this committee that the legislation has a bias towards animals as opposed to plants. So if you're within an ecosystem that is.... Obviously there are local considerations. When we talk about in this legislation the membership of COSEWIC having drawn from traditional or community knowledge, this is something you would disagree with as well?

Ms Chambers: It's one of our recommendations, actually, to go -

Mrs. Kraft Sloan: Yes, I know it was one of yours. I'm asking the witnesses who believe we should not have regional representation.

Do you disagree with having representatives from backgrounds of traditional ecological knowledge or community knowledge?

Mr. John: I think you'll find that most of the key experts do not confine their expertise so narrowly to one particular region.

Thinking of the experts I know in various areas, most of them have several well-developed areas of expertise and then usually some very strong peripheral areas of expertise as well. Whether it's a herpetologist or a mammalogist or a botanist, it makes no difference. Very few people I know have very localized expertise. In fact, I can think of only one, and he recently died.

Mrs. Kraft Sloan: What about the area of traditional ecological knowledge?

Mr. John: I have a lot of personal difficulties with that, because you're talking about knowledge in a time when all these influences didn't exist. That's really where the database comes from. Those kinds of understandings and practices are very valid for the times in which they were generated, but that's not what's happening today.

Mrs. Kraft Sloan: So you're suggesting that aboriginal knowledge, if it's based on traditional ecological knowledge, is not valid in the 1990s?

Mr. John: I think you have to approach it with vast caution. The times I've looked at it, there have been some very serious weaknesses.

Mrs. Kraft Sloan: From what perspective?

Mr. John: The last one I looked at was to comment on the Thelon Game Sanctuary. There were some strong suggestions that it be opened up for hunting. If it's opened up for hunting by people of the district, which is a traditional exercise for them, it is not the same today as when they were traditional hunters in that sanctuary area. Then they used stone-tipped bows. They walked on foot. They didn't have high-powered rifles, skidoos or motorized canoes.

We're not looking at the same thing even in a simple case of hunting, so how can you apply those kinds of traditional values when they're not the traditional values that the whole balanced ecosystem was based on?

I was looking at a fisherman at a reserve in northern Saskatchewan. He was using a gill-net, a Japanese invention - not a native American invention, not even a European invention, but a Japanese invention.

Mrs. Kraft Sloan: I guess my understanding of traditional ecological knowledge is that it evolves with the time as well, but it's within a particular set of cultural values and a particular world view. What you're suggesting is that maybe science is stuck back with with Copernicus, or something like that. When did western science...? I mean, western science is not static.

Mr. John: No, it's not static, and suddenly, as you've heard, we don't have anything like the answers we need. But I think in any progress forward you have to err on the side of caution when you're considering that the end result of what you're doing will eliminate a species from the earth.

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Mrs. Kraft Sloan: I guess we have a great deal of difference on this. Within the bill itself, it talks about geographically distinct populations of animals, plants, or other organisms. When you start to get into geographically distinct organisms, it seems to me community knowledge has value. Would anyone like to comment on that?

Ms Chambers: It is a different value, but I think it adds to the scientific data. Science is great, but we don't have all the answers there. I think any additional knowledge out there, knowledge which can complement what you already have, is useful.

As for the fisheries, it was blatantly clear that they never actually went and asked for community and traditional knowledge. Those people knew where the species were. They knew where things were disappearing.

It's much the same with our landscape. The people who live near the landscape do know things scientists, with all their expertise, don't have a handle on. I think we need to use all the available knowledge.

Mr. Sherrington: In a similar vein, most of the scientists, like most of the population, are concentrated along the southern 200 or 300 kilometres of the country. Over vast tracts of this huge country the only knowledge is native knowledge. In these places they are actually part of the system. It has to be taken into account. To ignore that would be to ignore, in many cases, the only knowledge that's available.

The Chairman: Mr. Adams, one final question.

Mr. Adams: Thank you, Mr. Chair.

To follow up on the point, I don't think it's the place to be argumentative, but as you know, traditional ecological knowledge and local knowledge, community knowledge, are mentioned in the present draft. For me, while I accept some of the points you've made, Mr. John, from witnesses we've heard and from my own personal experience, I think a lot has to do with the broad frame of reference of both sets of data, or both systems, if that's what you want to call it, about the place of human beings in the system.

We've had people suggest to us that all the problems we're facing have to do with human beings and the increase of human beings. We've had other people come and say ``that's not really....'' Our chair thinks that - that it is in fact the attitude of those human beings that is the problem and that in fact - and this is an argument - we can cope with as many human beings as we have right now, or we could have many more than we have now, if the attitude was right.

I'm not putting down modern science at all, but I think traditional ecological knowledge, the aboriginal science side, gives a frame of reference that tends to generate a better attitude than the one we have generated in western society. I would suggest to you that is one of the ways in which it is of value.

The Chairman: Would you like to make a brief comment, Mr. John, Mr. Schroeder?

Mr. Schroeder: Yes, just to point out that I think when we look at recovery actions, clearly those who are closest to the habitat where the species exist must be brought into the process, whether it's aboriginal or a private landowner. The constituency must be brought into the recovery process. I think that is where the information and involvement and participation are most appropriate.

The Chairman: With that, perhaps we might conclude this portion of the consultations.

Ms Chambers, Mr. John, Mr. Schroeder, Mr. Sherrington, we thank you for your participation and for the valuable information you've brought us, and for your comments and good advice. We'll take it into account, and particularly the parts you brought from Manitoba for those who are not here.

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We now invite the representatives of the Western Stock Growers' Association, the Alberta Cattle Commission, and the Manitoba Cattle Producers Association, please.

Is Normand Ward going to speak for the Western Stock Growers' Association?

Mr. Normand Ward (President, Western Stock Growers' Association): I am,Mr. Chairman.

The Chairman: And Arno Doerksen for the Alberta Cattle Commission?

Mr. Arno Doerksen (Chairman, Government Affairs, Alberta Cattle Commission): Yes, I will.

The Chairman: And Marlin Beever for the Manitoba Cattle Producers Association.

You each have fifteen minutes. Whichever way you'd like to allocate it amongst yourselves is fine. If, in your remarks, you wish to introduce your colleague at the table who is speaking or not speaking, that is of course natural and normal.

Without delay, we start with the Western Stock Growers' Association. Mr. Ward, welcome to the committee.

Mr. Ward: Thank you, Mr. Chairman.

The Chairman: By the way, may I say that you are the people who could make this legislation unnecessary.

Mr. Ward: Mr. Chairman, I will be doing part of our brief this afternoon, as will David Pope, and we will be sharing our time.

If I may, I will read our executive summary. I believe our whole brief should be in your hands. There are about five pages at the beginning of the brief that make up executive summary, and I would hope that you would have the opportunity to read the full brief at a later time.

The Western Stock Growers' Association is the oldest farm organization in the west, having served the cattle industry for a hundred years. Our members are voluntarily supportive of our activities. Together, they own and control about 500,000 head of cattle. Many of these cattle spend a portion of their time grazing on crown land. Crown grazing leases granted by the federal government in the 1880s were responsible for much of the early development of ranching in the west. The founders of this organization worked closely with government to solve the problems facing the early industry. As a result, Canada avoided repeating the destructive range wars that plagued the American industry and the tragedy of the commons that was the direct result of the free-range policy in the U.S.

Stock growers have been free-market environmentalists for the past century. Our management record has been generally excellent. Because of our management, range lands abound in wildlife. Native pastures are as productive today as they were when the buffalo roamed. Grasslands broken for farming in the first third of this century created the dust bowl of the thirties. Much of that land has been returned to health by cattle producers who put it back to grass and created habitat for wildlife, as well as pasture for cattle.

The Canada Endangered Species Protection Act could undo much of the work done by both cattle producers and government during the past half century, because the act takes on an adversarial approach and reverses a century of cooperation. Canada is poised to make the same mistakes as the Americans have made with their ESA, and will garner the same results.

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The reason we bring up the Endangered Species Act in the United States is that this act is very similar. We would hope that the act in Canada doesn't have some of the same results.

The United States Fish and Wildlife Service report presented to Congress on October 30, 1995, claimed:

America's effort to save endangered species has prevented the extinction of 99% of animals and plants on the Endangered Species List.

The claim to have saved several thousands of species is, to be charitable, a stretch. The same report noted that only 8% of the species were improving; 33% had remained stable; and 35% were declining despite recovery plans. The Fish and Wildlife Service simply didn't know what was happening with the remaining 23%.

Further to that, the Fish and Wildlife Service reported that the direct cost of the ESA between 1989 and 1993 was about 69¢ per person, or about $200 million. However, by including other government data, the National Wilderness Institute found that the cost of the top ten projects in 1992 was close to $300 million. Even then, the figures did not include the most indirect costs, such as lost taxation revenues and increased social program costs.

In a 1994 study of 306 actual recovery plans written between 1972 and 1993, and covering 388 of 853 endangered species, the National Wilderness Institute found that the cost estimates totalled close to $880 million in constant 1994 dollars. Cost estimates and recovery plans are often incomplete, and actual government expenditures exceeded the recovery plan estimates by anywhere from 119% to a shocking 33,000%.

At least half of the plans specify conflicts with agriculture, cattle and grazing. Plans reveal that there is very little information about the plants and animals considered threatened or endangered, and plans often call for additional laws and regulations.

The study concluded:

The government has no idea of the true cost of the endangered species program...

Though unmeasured, the costs of implementing the Act as currently written are in the multi-billions, yet in over twenty years not a single endangered species has legitimately been recovered and delisted as a result of the Endangered Species Act.

Rational, balanced decisions on how to allocate resources available for endangered species cannot be made under the law as presently written.

Although they originally supported the concept of protecting species at risk, the American experience after 24 years has led the majority of citizens and governors to believe today that their Endangered Species Act is destructive and needs urgent revision. There are three bills in Congress with non-partisan support to mitigate the destructiveness of the original act, create a more cooperative approach to managing endangered species, and to protect the property rights of citizens.

I'll now ask David Pope to continue on with our brief.

Mr. David Pope (Director, Western Stock Growers' Association): The proposed CESPA runs contrary to several principles widely believed by people in this country to be fundamental bases of law. One is the presumption of innocence; the second is conviction based only on proof beyond a reasonable doubt; and the third is protection of basic human rights, including the right to property, which has been a part of our common law tradition from the Magna Carta to the latter half of this century.

If one had deliberately set out to create a law that will harm wildlife, destroy habitat, and discourage private landowners from protecting wildlife on their lands, it would be difficult to surpass the proposed CESPA. If enacted into law, it will cause tremendous harm to the very species it is designed to protect. The fatal flaw is that the CESPA will primarily be used as a means of cost-free, national land use control rather than as a means of protecting rare species.

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Simply put, our main concerns are as follows. First, the better steward a landowner is, the more wildlife habitat one maintains and the more likely it is he or she will be punished by losing the use of their private lands.

Two, the prohibitions concerning endangered and threatened species and their residencies would apply, we have been told, to activities on all federal, provincial and private lands.

Finally, the categories for endangered species of threatened and vulnerable include just about every species of native plants and animal on the prairies, where agriculture has become a main industry. The bill has the potential to shut down large areas of agriculture, as happened to the logging industry in the northwestern United States.

Federal powers are extended from species that migrate across borders to those whose range extends across borders, which would include almost all prairie species in the net. Legislated and regulatory restrictions on the use of property due to the actual or suspected presence of an endangered or threatened species constitutes a taking of the property without compensation.

Sections of CESPA on cost indicate only that the direct cost associated with scientific analysis plus government recovery and management plans will be concerned, but not costs that affect individuals, communities and industries, loss of taxation revenue and increased social support costs. Private prosecutions give individuals a power of prosecution formerly reserved for the state, thus opening the door to legally sanctioned harassment.

The bill actually promotes the harassment by committed activists of people working in agriculture, forestry, energy or any other in rural areas. For one, the listing process may be based on non-scientifically derived status reports submitted by any person. While an investigation takes place, any action that might damage the proposed endangered species may be prohibited. This may last for up to a year and a half, and perhaps longer.

Emergency response designations are instigated by individuals, not COSEWIC. The minister shall not release the name or names of persons instigating an investigation or emergency response to any person accused under the proposed act, creating secret informants, something expected more in a police state than a democratic society. Private prosecutions may proceed even when the minister has already determined, for whatever reason, that such action is not required.

There are no statutory protections for an accused person or corporation against unwarranted search and seizure. The offences and punishment clauses are extremely onerous. Especially considering the burden of proof based on balance of probabilities, a subjective, not objective, measure is lax. Fines imposed may easily reach astronomical figures - hundreds of thousands of dollars or five hundreds of thousands of dollars, depending on which way it is proceeded with.

Thank you.

The Chairman: Before the next witnesses appear, Mr. Pope, can you give assurance to members of this committee that you have read the bill?

Mr. Pope: Yes.

The Chairman: You have thoroughly studied it yourself?

Mr. Pope: Yes.

The Chairman: Fine. Thank you.

Who would like to continue?

Mr. Ward: If I may, Mr. Chairman, I'll continue.

A major problem with the bill is that the incentives are wrong. If rare metal or gemstones are found on somebody's property, the value of their property goes up, but if a rare bird is found, the property value may in fact decline or disappear. Some in the U.S. believe certain habitats for endangered species have in fact been lost since the listing under the U.S. act than would have been lost without the act at all.

By threatening landowners who make room for nature with the uncompensated loss of their land, the bill will encourage landholders to get rid of wildlife habitat and sterilize their lands. Wildlife is viewed as a liability and as a threat. We must rewrite the bill to make the landowner want to have the bird or endangered species on his property. The most important step Parliament can take is to remove the perverse incentives in the bill and stop making stewardship a liability.

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Third, positive incentives to place within this bill. Private landowners are not afraid of wildlife on their lands, but they're afraid of federal regulations and government agents on their land. Eliminate that fear and there will be a willingness to help protect wildlife and the habitat. Replace the compulsory regulatory approach with a voluntary, cooperative, non-regulatory, incentive-based bill. Under such a bill, the government would have no power to take property by confiscation or regulation to protect endangered species or their habitat.

Under a voluntary, wise-use, cooperative approach, government would have several options to accomplish its goals: rent the land for habitat, purchase conservation easements or development rights, purchase land, pay for delayed harvests, pay landowners to plant or develop certain crops. It would pay landowners to produce wildlife by erecting nesting boxes or platforms or creating specific types of habitat. Most of these things are already being done by non-government agencies working cooperatively with landowners.

A truly significant aspect of a voluntary, non-regulatory law would be that landowners would not be afraid of helping or sharing their lands with wildlife. The influence of the bill would then extend far beyond federal lands because of cooperation in the best Canadian tradition. The costs associated with a non-regulatory law would be far less than those from maintaining a Draconian regulatory law and then requiring compensation for a taking or for the loss of the economic use or value of the private property. Thus paradoxical as it seems, a non-regulatory law would be the only endangered species protection law that would not be a budget buster, the only law that would not require a vast new source of funding or a legion of regulatory inspectors.

This exciting concept holds the promise of creating a new environmental paradigm. It would replace mandated government regulations, land use controls and acquisitions, and command-and-control approaches. It would rely instead on the institutions of a free society, private property rights, market prices, economic incentives, and market mechanisms. This is a new conservation vision, growing out of the massive discontent with ever-growing environmental regulation as a result of the failure of and disaster created by similar legislation in the United States. Let us not repeat the mistakes of our neighbours to the south, who at this very moment are looking to change the Endangered Species Act to encompass the cooperation of their people who actually live on the land day in, day out.

Some of our recommendations are these:

- The approach to endangered species protection in this bill should be a bottom-up approach, with well-defined goals.

- The species classification and critical habitat designation process must be based solely on scientific data analysis. The information should be verifiable, reliable, accurate, and sufficient for making a reasonable judgment about the status of the plant or animal in question.

- The decisions of the committee should be subject to scientific peer review and key biological decisions before being forwarded along with the review to the minister.

- All economic costs and all costs incurred by those people, communities, and industries affected by the designation, should be part of the analysis and decision-making process.

- Establish attainable recovery criteria in the law.

- Require public input into recovery plans.

- Spell out clear requirements for the designation of critical habitat.

- Require written consent in a recovery plan for any release of animals on or near private property.

- Private property rights which Canadians traditionally enjoyed and which were and are recognized by the courts under common law must be reaffirmed by specific property rights and those rights protected by this legislation.

- Conservation efforts must be balanced with economic stability and protection of private property.

- Recovery plans should not deny landowners reasonable use of their private property and there should be no significant reduction in the value of the property.

- Property owners should be compensated for a ``taking'' or lost use of property.

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- Establish clear standards for when habitat modification will be viewed as a violation and allow private property owners to consult with the minister in a timely manner to determine if a proposed action will or will not violate a recovery plan.

- Private prosecutions must be prohibited.

- The burden of proof must be made more rigorous than a balance of probabilities. Protections must be maintained against unwarranted search and seizure. An accused person must have the right to ``confront'' or know his accuser.

- Create incentives for private property owners to protect species.

- Ensure that there are no disincentives within the act that cause habitat degradation.

Mr. Chairman, that's the end of our report.

The Chairman: Thank you for staying within your time allocation.

May I call on the next speaker.

Mr. Doerksen: I'll be assisted this afternoon by Stratton Peake.

At the outset, Mr. Chairman, I'd like to state that Alberta cattle producers are by and large supportive of species protection, but a workable balance must be reached where man and wildlife can exist in a harmonious balance. Landowners on a day-to-day basis have opportunity to affect the well-being of a wide range of species, and their cooperation is critical to successful species protection.

In this submission the Alberta Cattle Commission makes the following comments and suggestions about Bill C-65, the proposed Canada Endangered Species Protection Act.

Cattle producers own and manage large areas of land in the settled area of Alberta. Much of this land remains in its natural state and is home to a variety of wildlife, including a number of endangered and threatened species.

In the settled areas of Alberta, effective protection of wildlife and wildlife habitat depends on the willing cooperation of landowners.

The livelihood of cattle producers and their families depends on their managing their lands in a responsible and sustainable manner. In addition, many producers are involved in cooperative programs to enhance wildlife and wildlife habitat.

Bill C-65 contains a number of provisions that will discourage cattle producers from cooperating in protecting wildlife and wildlife habitat. These provisions have the potential to penalize those producers who have endangered or threatened species on their land. They include clause 33, the lack of provisions for compensation where costs are incurred and the potential for costly and disruptive legal action through endangered species protection actions launched by special interest groups or individuals.

We propose that the committee consider amendments to the bill that remove those elements that have the potential to penalize landowners who have protected wildlife and its habitat and insert provisions that will recognize and reward producers who cooperate in protective programs.

The Alberta Cattle Commission is the largest provincial cattlemen's association in Canada, representing some 30,000 beef producers and 65% of all Canadian beef production. In 1995, farm cash income from the sale of beef cattle in Alberta amounted to $2.2 billion or 38% of the total farm cash income in the province. Using a multiplier effect of four times, we estimate the total contribution of the beef cattle industry to the Alberta economy to be $9 billion.

The basis of the beef cattle industry in Alberta is the 1.9-million-head beef cow herd, owned and managed by approximately 30,000 producers. The large majority of these cows use summer grazing provided by natural range lands and other marginal lands unsuitable for crop production.

Those areas owned and managed by cattle producers represent all but one of the major ecosystems in Alberta and include the largest areas of wildlife habitat left in the settled areas of the province. For that reason, the cooperation of cattle producers is vital to the protection of wildlife and wildlife habitat and the survival of endangered and threatened species in the province. Cattle producers have an intense interest in and concern about the policies that impact their ability to continue to manage these lands in a way that will sustain them and their families now and in the future. This is certainly true of Bill C-65.

We believe that the proper management of extensive grazing operations is compatible with the protection of wildlife and wildlife habitat. Most beef cattle operations are family owned and operated and have been in the same family for several generations. The survival of a successful beef cattle operation depends on the proper management and sustained use of the soil, grass and water resources - those same resources that are essential for wildlife.

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Within the settled areas of the province, the extensive grazing areas are often the only remaining large areas of relatively unchanged landscape, and consequently are the home for many species of wildlife, some of them endangered or threatened. The fact that these extensive range lands are now being targeted by environmental and other groups for inclusion in protected areas is proof of the way in which they have been responsibly managed in the past.

Cattle producers recognize the responsibility they have to themselves and to society to manage these areas in a sustainable manner. In 1987, the Alberta Cattle Commission conducted an environmental risk assessment of the beef cattle industry in the province to identify those areas where we should be working individually and collectively to ensure that we minimize the impact of beef cattle operations on natural ecosystems. A number of projects were initiated as a result of that assessment, including the cows and fish project to improve the management of riparian habitats on range lands, and the water quality improvement project to address water quality concerns.

Cattle producers in Alberta have been active participants in the North American Waterfowl Management Plan and Operation Burrowing Owl, both aimed at protecting endangered and threatened species in the province. As a result of these and other programs, we are committed to the concept of voluntary cooperative measures to address environmental issues and protect species and habitat. However, while the protection of the range and water resource is a component of good management, measures to protect specific species and ecosystems can come at a cost to the landowner. Types of extra costs include forgone production opportunities, higher management costs, and problems resulting from increased public access. These are costs that are being incurred by producers for the benefit of society as a whole. While most producers are prepared to carry some of these costs on a voluntary basis, we are not prepared to incur them when they are imposed on us.

While we recognize that the main thrust of Bill C-65 is aimed at federal lands and those species already managed under federal legislation, we believe elements of the bill could have significant impacts on private and provincial lands, and specifically on cattle producers. We do not like the general approach of the legislation, which rests very heavily on a ``command and punishment'' regime and which ignores the concepts of voluntary partnership that have characterized the contribution that cattle producers have made to wildlife protection in the past.

Some of the uncertainties in the bill, combined with the broad legislative powers handed over to individuals and special interest groups, make us extremely nervous. We believe the bill exposes those landowners who have voluntarily protected species and habitat to harassment and legal action that could seriously jeopardize their ability to survive in cattle production. In contrast, those producers who have made no effort to protect habitat and species will be free of any risk. The overall result of this approach will be to discourage cooperative voluntary efforts to protect species and habitat and to create a strong incentive for those who have protected habitat to eradicate it, especially if it is home to species that might be listed under the act.

I would draw an analogy to the story, which I'm sure we're all familiar with, of the competition that took place between the wind and sun one day when they saw a traveller walking down the road. The wind said to the sun, I think I can make that traveller take his coat off before you can. Of course when he tried, the harder he blew, the tighter that coat came on around the traveller's shoulders. When the wind stopped and the sun came out, it wasn't very long at all until the traveller took his coat off. In some ways, I think this legislation represents a bit of a cool north breeze to landowners, and also, I think, because of that, to endangered species and species that are at risk.

I'll ask Stratton Peake to continue with our presentation.

Mr. Stratton Peake (Alberta Cattle Commission): Good afternoon, Mr. Chairman, ladies and gentlemen.

We are generally supportive of the proposals that the Canadian Cattlemen's Association has made to you for improvements to the legislation to address the concerns we have outlined above. However, we want to re-emphasize some of the concerns they have raised and also raise some new issues that we think need to be addressed. These include the following.

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Amendments to remove the disincentives for private landowners to protect wildlife habitats and listed species: We believe clause 33 of the bill, combined with the heavy penalties and the provision for private individuals and special interest groups to bring their own charges under the act, are a major disincentive to cooperation by landowners in protecting habitat and species.

We have consulted with a number of conservation groups on this aspect of the bill, and they are in general agreement with us that it will definitely have a negative impact on joint programs with landowners. In fact, if the bill passes in its present form, our advice to our members will be to seriously question future cooperative projects with groups such as Ducks Unlimited and Operation Burrowing Owl in case such measures expose them to legal action down the road. We will also suggest that where they are aware of the presence of species that might be listed, they should get legal advice on their potential exposure to measures limiting their management options and, again, the possibility of either public or private legal action under the provisions of this bill.

We suggest that rather than concentrating on measures that actively discourage voluntary action and partnerships, the government should turn the bill around and include measures that encourage and facilitate such measures on land used for agriculture. We propose that a new clause, which allows for the registration of joint projects between agencies or organizations and landowners to protect species and habitat, be inserted into the bill. Where such projects are registered, they will be subject to special treatment under the act, including protection from legal action and the opportunity for compensation for loss of income or increased cost. We would be happy to discuss this proposal with you in greater detail. It is also essential that stakeholders be a part of recovery teams.

There are a number of definitions in clause 2 of the bill that we believe are either too broad or too vague and will lead to legal and administrative confusion. They include the following:

``Individual'' is so broadly defined that it would be interpreted to include any organic matter anywhere in Canada. We cannot think that the government intended this broad a definition.

We believe ``residence'' should be more narrowly defined. In its present form, it could be expanded to include habitat essential to the species. We do not believe this was the intention of the government.

The inclusion of ``geographically distinct populations'' under the definition of wildlife species will create serious challenges. How distinct do they have to be before being considered worthy of protection?

We have serious concerns about clause 33, on regulations governing residences, which appears to give the federal government the right to override provincial jurisdiction and private property rights. Paragraph 33(b) gives the minister the right to make regulations governing any activities that destroy or damage the residence of any wildlife species, whether living or dead, at any developmental stage, and includes eggs, sperm, pollen, and spores.

We note that the limitations governing paragraph 33(a) do not apply to paragraph 33(b) and that the individual does not have to be endangered or threatened, or cross national borders. We are not sure whether this was intended, but if it was, we suggest that this clause, combined with the rights of individuals and special interest groups under clause 60, exposes cattle producers and other landowners to the risk of harassment and legal action on any activity affecting any species.

On clauses 60 to 76, we are strongly opposed to the principles embodied in this section of the bill. It appears to be an open invitation to special interest groups to use the legislation to harass the government and landowners, regardless of whether or not offences have occurred. Landowners will be forced to protect themselves whenever a charge is lodged under this portion of the act. There is considerable doubt about the application of paragraph 60(2)(b). We assume this paragraph only applies to habitats on those areas defined in clause 3; however, that needs to be clearly stated in the clause itself.

If the opportunity for civil suits is to remain in this bill, we request that the person launching the civil suit be required to post a bond equivalent to the fine allocated.

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In closing, we are a small percentage of the population of Canada, but we are responsible for the care and sustainability of a large area of habitat that is home to a large variety of species. We also have the responsibility of producing a safe and wholesome food for all.

Thank you.

The Chairman: Thank you. Your presentation is perfectly within your time. We appreciate that.

Mr. Beever, please.

Mr. Marlin Beever (President, Manitoba Cattle Producers Association): Thank you, Mr. Chairman.

In this submission the Manitoba Cattle Producers Association makes the following comments about Bill C-65, the proposed Endangered Species Protection Act.

Cattle producers own and manage large areas of land in the settled area of Manitoba, an area that is home to a large variety of wildlife, including a number that are categorized as endangered or threatened species.

We believe the effective protection of wildlife and wildlife habitat depends on the willing cooperation of landowners.

The livelihood of cattle producers depends on responsible, sustainable management of their land. Consequently, many cattle producers cooperate with and work in partnership with conservation groups and government agencies on a number of successful programs to enhance wildlife and wildlife habitat.

In our opinion, there are elements in the proposed legislation that will discourage cattle producers from cooperating with conservation groups to protect wildlife and wildlife habitat. Bill C-65 contains provisions that have the potential to penalize producers who have endangered or threatened species occupying their land. There is also an absence in this legislation for provision for compensation where costs may be incurred resulting from income and opportunity losses as well as for those costs resulting from wildlife damage or public access. We're also concerned about the control that special interest groups or individuals may have by potentially disrupting operations for cattle producers who have endangered or threatened species on their land.

We encourage the committee to consider amendments to the bill that remove the provision that could potentially penalize landowners who have already taken steps to protect wildlife and wildlife habitat. We feel that provisions should be made to recognize and reward cattle producers who have participated cooperatively in protection programs with other conservation organizations.

The Manitoba Cattle Producers Association represents about 14,000 beef cattle producers across the province. The Manitoba beef cow herd is estimated at 525,000 cows. In 1995, the farm cash income from the sale of beef cattle was $341 million or 13% of the total farm cash receipts in the province.

The basis for the Manitoba beef cattle industry is cow-calf production. Cow-calf production makes use of large areas of land that are unsuitable for crop production and are often still in or close to their natural state. These areas are home to a large variety of animal and plant species, some of which are endangered or threatened. Within the settled areas of Manitoba, cattle producers manage more land that is suitable for wildlife than any other sector does and therefore has an extremely important role to play in successful programs to protect endangered species or to keep other species from becoming threatened.

We believe proper management and use of soil, grass and water resources are integral parts of every successful beef cattle operation. This principle is also the basis for healthy wildlife and wildlife habitat. As a result, proper management of extensive grazing operations is compatible with the protection of wildlife and wildlife habitat. Quite often, cattle grazing areas are home to a wide variety of wildlife and plants, some of which are threatened or endangered.

Cattle producers in Manitoba are aware of the importance of managing their land in a responsible and sustainable way for the long-term success of their operation, for their children's future and for the intrinsic benefit for society. A number of projects have been initiated throughout the province where cattle producers are working cooperatively with conservation or wildlife groups to minimize the impact of beef cattle production on natural ecosystems. Manitoba cattle producers are involved in projects with the Manitoba Habitat Heritage Corporation to improve management of riparian areas on range land. They are also involved with the range land resource program to improve water quality and riparian areas, with Ducks Unlimited to preserve wetlands, and with Sharp Tails Plus, a program to increase and protect habitat for the sharp-tail grouse.

Cattle producers are responsible stewards of the land and are committed to voluntary cooperative programs designed to address environmental issues and the protection of species and habitat. This commitment to sustainable management of the land and its resources does, however, come at a cost, which is almost always borne by the landowner. Types of extra costs include forgone opportunities, high management costs, and problems with increased public access. Although most cattle producers are willing to carry most of these costs on a voluntary basis for the benefit of society as a whole, it's not agreeable to force these producers to carry all the current or potential increase of costs without some sort of compensation being available.

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We have concerns that Bill C-65 will have significant impacts on private and provincial lands in Manitoba. Therefore, it will also impact on Manitoba cattle producers. The thrust of this bill, in our opinion, rests heavily on the regulating and punitive approach and does little to foster voluntary cooperation between landowners and conservation-minded groups. In fact, we feel this legislation may encourage landowners to get rid of those species from their land that may be listed as threatened or endangered, since it exposes landowners who have voluntarily protected species and habitats to possible harassment and legal action. On the other hand, landowners who have made no effort to preserve species or habitats are free from any risk. Thus it seems this bill could actually single out and punish those landowners who are making an effort to protect endangered species and habitats while rewarding those who have not.

The situation of the PFRA community pastures is of concern to Manitoba livestock producers. PFRA pastures provide 4.9% of the grazing in the prairie and boreal plain ecozones. The average herd size in these areas is 55 head, with 7% of the cattle farms consigning to PFRA pastures. Those farms consigning allocate an average of 40 head to the pasture. PFRA data sources from Statistics Canada show a direct economic benefit of PFRA grazing in Manitoba of $8.7 million. The indirect activities are estimated at three times the direct benefits.

If PFRA stocking rates were reduced, it would be of major concern to Manitoba cattle producers and the industry as a whole. If there is a shift of grazing from federal lands, an increase would likely occur in the short term on provincial and private pastures. Producers will ultimately have to decide whether to reduce their herd size, convert annual crop land to forage, or get out of the industry altogether. For PFRA patrons, a reduction in their allocation would have a direct impact on their operation and income.

We support all the concerns and proposals that the Canadian Cattlemen's Association submitted to the standing committee describing improvements that could be made to the legislation.

Of particular concerns are clauses 33 and 60 of the bill. Clause 33 gives the federal minister the power to pass regulations making it an offence to engage knowingly in activities that damage or destroy the residence of an animal that is on an endangered or threatened species list. It is our understanding these regulations would apply to all types of land, federal, provincial, and private. Clause 60 gives private citizens the right to bring action against landowners or others they believe may be engaged in activities that are illegal under the act.

These clauses, taken together, give power to people who may frivolously wish to stop activities on private land. It may open the door to having the provisions expanded to include plants as well as animals and the definition of the term ``residence'' to include ``habitat'' in the broadest sense. This could be extremely disruptive to cattle producers who might harbour threatened or endangered species on their land.

Another point to emphasize is that of compensation to the landowner. Through this legislation, if a recovery plan proposes an action that constitutes the taking of an economic interest in the land or other asset, compensation to the landowner must be provided. There is no doubt the failure to provide compensation is a major failing of the American Endangered Species Act. Landowners must not be made to feel an endangered species is a threat to their livelihood. Providing for species at risk is a social good, and costs should be borne by all of society, not just one small segment, the rural landowner.

Your committee will be receiving, if it has not already received, letters of concern from Sharp-Tails Plus, the Manitoba Bison Association, the Manitoba Equine Ranchers Association, the Manitoba Department of Environment, the Manitoba Conservation Districts Association, and the Manitoba Habitat Heritage Corporation. We as cattlemen have developed a very positive working relationship with many of the conservation groups and feel cooperation is the appropriate way to continue in the future.

Thank you.

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The Vice-Chair (Mrs. Payne): Thank you, Mr. Beever and gentlemen.

For the first round of questions I'll go to Mr. Forseth.

Mr. Forseth (New Westminster - Burnaby): I'd like to follow up on just what you've said from the Manitoba Cattle Producers Association. I look at your submission, on page 2, and in the middle of the page you say:

There is also an absence in this legislation for provisions for compensation where costs may be incurred resulting from income and opportunity losses, as well as those costs resulting from wildlife damage and public access.

Then you also say on page 3, at the bottom of the ``Cattle Producers and Endangered Species'' section:

Although most cattle producers are willing to carry most of these costs on a voluntary basis for the benefit of society as a whole, it is not agreeable to force these producers to carry all of the current and potential increase of costs without some sort of compensation available.

Then, near the end of your presentation, you say:

Through this legislation, if a recovery plan proposes an action that constitutes a ``taking'' of an economic interest in the land or other asset, compensation to the landowner must be provided.

Certainly this is a repeated theme through all three presentations, and I would like you to provide some more specific suggestions as to how that can be done in the legislation. You understand the designation of the bill, and I'm looking at page 1a of the bill itself.

In the recommendation it says:

His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ``An Act respecting the protection of wildlife species in Canada from extirpation or extinction''.

That designation somewhat circumscribes, I suppose, the ability of amendments via the back door to write the budget that would come down next February, which would provide, perhaps, unlimited applications for compensation and provide unpredictability and unbudgeted commitments for the government. But there must be a way that you've certainly looked at of dealing with this issue of compensation in order to reduce fear. We've heard from others who have presented to this committee talk about ongoing planning to reduce uncertainty, and if that can be accomplished, then more individuals can buy into a plan rather than seeing it as something to be involved with in an adversarial process.

I'd like to give you all an opportunity to provide some specific ways out of this issue of compensation and the fear that somehow this legislation is something to be opposed rather than cooperated with.

Mr. Ward: If I may, Madam Chairman, witness Hawksworth firmly believes in the conservation and biodiversity and firmly believes in a cooperative approach to manage that. Within that, I would suggest in almost all cases a cooperative approach can be established without a budget constraint or with no money coming to the landowner.

In a lot of cases - and I'm speaking in my particular case - cattle grazing is very compatible with increased biodiversity. As the biodiversity on my ranch increases, I also have a benefit from a greater number of cattle I can also put on. In fact, we're raising the biodiversity on one hand and I'm increasing my income through cattle on the other hand, so it's a win-win situation. I would suggest that in most cases that would happen. But in the end we still need to recognize the private property rights of those landowners, and in those cases where we do affect the private property rights there will have to be compensation of some sort.

Now, we can do that in a wide range of uses. Maybe we trade land, maybe we rent land, maybe we pay the landowner to do a little thing in this recovery area on that specific piece of his land. There's a number of ways it can be done, I would suggest, with little cost. But the cost would be in different dollars. It would be the cooperative nature that takes time and going out to those landowners and discussing those alternatives. It's not something that can be done from the top down, to put a law in that says that for $100,000 you're going to do this. The other approach is more sophisticated. It takes more time, but I would suggest that in the end it takes less money.

The Vice-Chair (Mrs. Payne): Are there any other comments on that subject?

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Mr. Pope: Yes. I think another example that can be looked at in this cooperative approach, which is certainly our position, was the wood duck back in the 1920s and 1930s. People who were interested at that time - it was a bit before my time - noticed that the wood duck in the eastern flyway was becoming quite scarce. So a group of people formed an association called Friends of the Wood Duck. They thought they'd start doing something about it.

It took a long time - don't think this just happened overnight - but this group organized on the east coast of the U.S. and in eastern Canada and they started going to individual landowners and did a bit of homework and found out what kind of place the wood duck lived in and started building little boxes for the wood duck. They went up and down the east coast of the U.S. and Canada and eventually created the habitat. Now, I guess, the wood duck is the second most prevalent duck in the eastern flyway.

There was this relationship between the people from the urban areas who were concerned about the wood duck meeting with the people who owned the land where most of the habitat was and they worked out a program that didn't cost anyone anything. In fact, most of the people in my bit of research on this question found that landowners welcomed the Friends of the Wood Duck coming onto their places and building the boxes. Over the years it resulted in a very prevalent, healthy species.

Mr. Forseth: You might almost be describing an aspect of what a recovery plan would be in this bill.

Mr. Pope: I think we are, but it's the penalties that absolutely frighten us, that are of such concern, potentially having a neighbour turn you in. Maybe he doesn't particularly like you for some other reason, but you've statutorily created a mechanism for him to start an action against you. That's not the way to really foster goodwill in a rural community.

I'm saying maybe a neighbour - take it to the further extreme, with some of our friends in the urban areas who have other agendas that could make our lives miserable at best.

The Vice-Chair (Mrs. Payne): Mr. Doerksen.

Mr. Doerkson: To add to what's been said, where cooperation exists and where cooperative programs exist, then there somehow needs to be freedom from these kinds of impositions or legislation that will inflict severe restrictions and economic losses on landowners. I think that's something we've suggested here.

If we're going to have this kind of legislation, where cooperation exists, there needs to be some freedom from that legislation being applied to those who are cooperating.

Mr. Forseth: I would end by saying the issue of compensation is a big one to you folks. Have you addressed any specific clause in the bill with a suggested wording that somehow would improve it? There are costs addressed in some respects to the recovery plan. You recognize that. Do you have some suggested wording to improve the bill?

Mr. Ward: I would suggest that under recovery plans a mechanism be specifically set out for the compensation where a recovery plan meets the private property of the landowner. Now, that may mean expropriation in some people's minds, but I think it goes beyond the normal expropriation act. I guess one would argue: is this in the public good of everybody? Certainly everybody would like to see the conservation and biodiversity, but this goes beyond the normal expropriation for a road or a power line or those sorts of things.

Within the expropriation, I think we know to go further and identify further. It may be something like a surface rights act that's here in Alberta, dealing between the landowners and an oil company - something similar to that, where it specifically sets out an agenda that has to be followed so that when a recovery plan is imposed upon a landholder, you go through those proper mechanisms so that you reduce the conflict between the landholder and the bill. I think it's only fair to ask for that so it's not an open-ended issue. Granted, there is provision in the recovery plans to do that, but it needs to be very specifically set out.

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The Vice-Chair (Mrs. Payne): Mr. Beever, I think you wanted to make a comment.

Mr. Beever: Yes, just on what the others had said.

I think cooperation and open discussion for the landowners is the real key in this area. When recovery programs are identified they really need to be part of those discussions. When you try to implement and force people into things there is resistance. I think the cooperation side of it will alleviate a lot of those fears.

Mr. Peake: I would like to concur with Mr. Beever. I feel that stakeholder participation in recovery teams is essential. I am a fourth-generation rancher in Alberta. I feel that there are things that have been passed on within my family that may be of value to this process. We have lived here in a native prairie environment for over 100 years. That's not very long in some terms, but it is a pretty good stretch in Alberta.

I feel that we should be part of the recovery team. We may find a solution that doesn't cost anybody any money, and I feel that's advantageous to all.

The Vice-Chair (Mrs. Payne): Thank you for your responses.

We will go to Mr. Knutson, Mrs. Kraft Sloan and Mr. Caccia.

Mr. Knutson (Elgin - Norfolk): Thanks very much, Madam Chair.

Gentlemen, I want to say, certainly in response to Mr. Forseth's question, I agree with every single thing you've said. Cooperation is always the best route to go. I agree that landowners should be compensated if we're taking part of their land away from what they're using it for. I respect your point of view that you see yourselves as stewards of the land and you want to be respected for that. Certainly I don't want to say or do anything that indicates that I don't respect you as stewards of your own property, but I do want to focus on a couple of issues.

First, one clause that was brought up was clause 60, the citizen's right to bring an action. You mentioned that the proposed act is similar to the American act. In actual fact, the wording of this proposed act is similar to a number of pieces of legislation that have been passed by various provinces. I'll just highlight one of the differences between this bill and the American act.

In the American act, a citizen can bring an action in the courts. The only thing that prevents them is the principle of duplication. If the government already has a lawsuit in the courts then that citizen is prevented. The test or the threshold that has to be satisfied under clause 60 is a much different test, a much higher test than you'll find in the American act. First of all, they have to bring an application to the minister, and then they have to wait for a report. They only get a right to go to court against a landowner.... First of all, they have to go to court and prove that the minister has acted unreasonably. Then they would only be able to bring the action themselves if the minister has acted unreasonably.

That presents a much different standard for private prosecution than is in the American act. When you look at the results of similar provincial legislation we find there have been virtually no citizens' actions. So I find that the analogy with what happened in the Pacific northwest is a false analogy from the starting point, because it's different legislation. There's a different culture about litigation.

Another example would be that in the U.S., everybody pays their own costs. In Canada, if you lose the action you pay your costs plus the other side's costs. So that's a prohibition or hindrance against frivolous action.

Now that I've shared that with you, doesn't it make you feel better in that you really don't have anything to worry about in terms of these citizens' actions?

Mr. Pope: As far as I'm concerned, no, because it's there. Possibly the environmental lobby, with the huge amounts of funding most of them receive...a lawsuit, if they decided to take action under this type of sanctioned action, it would not prevent them.

Now, simply to say that it hasn't happened so far.... This federal act hasn't been in effect so far. So as to what happens in the future, who knows, but it's still on the books. That would be my feeling.

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Mr. Knutson: My point is that if we look at the evidence on the likelihood of an action occurring, it would be better to look at jurisdiction that has similar language, such as Ontario, which has a bill of rights that has language similar to the proposed language here, and not look at the American experience, where the language of the bill, the law, is quite different. It's not similar.

Doesn't it make sense to look at jurisdictions under Canadian law with similar language? From there we can discuss a little more realistically what unintended consequences might flow from the legislation.

Mr. Doerksen: I have a question back on clause 60. As a government, do we really feel good about opening the government to this kind of exposure where the minister, who as part of his mandate has responsibility to watch over environmental issues such as endangered species, opens the government to that kind of litigation and legal action where someone can come against the government on this? Don't we have more confidence in the goodwill of what our federal ministers would do? I really question why that has to be in there.

Mr. Knutson: The new Alberta view, that we have confidence in....

Clause 60 is basically a fail-safe mechanism if the politician, the elected person, doesn't do their job. A person can go to court. If you look at the jurisprudence around similar issues when the ministers have been given discretion and people have tried to take those ministers to court for not exercising their discretion appropriately under the law of various actions, whether it's the transportation act or a variety of other acts I'm familiar with, the courts are loath to intervene on ministerial discretion in Canada. So I'm saying it's the last-case, worst-case scenario, where you have a minister who has acted unreasonably.

That's the wording in the bill. It has to satisfy a test of reasonableness. A court would have to find a minister has acted unreasonably. For my money, that should assure all of us, regardless of where we are in this country, that the proposed section could not be invoked frivolously or simply at the whim of a well-funded environmental group.

Mr. Doerksen: I think part of the discomfort comes in projecting ourselves twenty or fifty years down the road with this kind of wording.

Mr. Knutson: ``Reasonable'' will still mean ``reasonable'' twenty or fifty years down the road.

Let me turn to another broad issue, this whole argument about voluntary compliance and how people behave differently if they are forced. I guess the analogy I use - this argument came up in hearings in Ottawa - is that I know it's in my best interests to comply voluntarily with reasonable safe driving practices. When I drive home every day or I drive back to the riding, I drive on the right side of the road. If there was no law that said you drove on the right side of the road but it was just a matter of convention, I would still drive on the right side of the road. But I happen to feel good that there is a law that says you have to drive on the right side of the road and there's a law that says if you drive beyond a certain speed limit you're going to get ticketed, because there is a hammer there.

I say that just as a point of reference.

You make the point - I'm not sure which group it was - that if this bill is passed you're going to advise your members that perhaps they need to behave differently and become less stewards of their land. I just want to ask you...I think it was Mr. Ward. There are penalties under the Migratory Birds Convention Act now. Do any of the groups here forewarn their membership about these penalties? Are you particularly worried about the penalties under the Migratory Birds Convention Act? Are you particularly worried that this heavy-handed law from the Parliament of Canada might come and have some unintended consequences? Or do you just live with it and really don't find it a problem to comply with it?

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Mr. Pope: Maybe I'll respond. I'm certainly not as conversant with the Migratory Birds Convention Act as I am with this act, but I don't think the analogy there is at all what you're saying.

Mr. Knutson: You're not familiar with the act.

Mr. Pope: I'm not very familiar with it, but I have land that some ducks fly over and I haven't had any particular problems. But here you have habitat. You have things on the ground...this is concerned with having programs implemented by outside forces, programs that, so far, are not voluntary under this particular act. Hopefully we can make some changes.

But ducks fly in and ducks fly out. The habitat of a burrowing owl or a kangaroo rat or a blind salamander - depending on where you live -he is there to stay. If they're found on any of our places, people will come in - and we're always guessing as to how this is going to work, because none of us really know for sure until we get into it - and a habitat program will be put together, either in cooperation or otherwise, and then there it is. Presumably that interest will be caveated against the property - I would imagine - and then you have to live with it for as long as that animal is there.

That is much different. And if that's the case - and it's generally the case in another jurisdiction - - we're left with the situation. And when it's time to sell that quarter section or section of land and you have these conditions placed on it and caveated, the number of potential buyers that will be interested in that property will probably be somewhat less than if there were no conditions. So I think it's a bit different in this case than it is with the Migratory Birds Convention Act.

Mr. Knutson: We differ on that point, but my point is that I haven't heard from any cattle person who is worried about the penalties in the Migratory Birds Convention Act.

Mr. Pope: Do they amount to $500,000 per?

Mr. Knutson: They're serious and they -

Mr. Pope: For habitat preserved?

Mr. Knutson: - protect residences and...they're serious penalties.

But the fact is that you're able to go about your business and do your jobs. I accept that you provide a high standard of stewardship and conservation on your land...and you don't even notice the act. I'd like to suggest that once this bill is passed the same thing will happen. Ten years from now you won't even notice its existence. This whole regime of cooperation that you're used to working with will basically be implemented, and the penalty sections of the act will only apply in very rare circumstances when somebody willfully damages a threatened or endangered species. That's what the penalty section is there for. It's there for the occasional person who is the exception to the rule, the kind of person who just deliberately goes out and does damage.

I'll conclude with that point.

The Vice-Chair (Mrs. Payne): Thank you, Mr. Knutson.

Next we have Mrs. Kraft Sloan, then Mr. Caccia, and then Mr. Adams.

Mrs. Kraft Sloan: Thank you very much.

It's been very useful for us to be able to travel to this part of the country to hear your concerns. We had a presentation in Ottawa from members from the Cattlemen's Association, but it's good to actually be in the territory so that we have a better sense of it ourselves.

I just want to put forward a few things. Are you aware that the Canadian Federation of Agriculture endorses this legislation, and that clause 33, which is the clause that you're very concerned about, is also supported by the National Agriculture Environmental Committee as well? Those are just two of the things I want to put forward. And those groups certainly speak about the special interests of private landowners.

But are you familiar with paragraph 36(1)(b) in the bill, which talks about the application of prohibitions? Are you familiar with this paragraph? This exempts anyone who is engaged in conservation measures activities.

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I understand that one of your concerns is that if you are involved in a voluntary conservation program you are going to advise your members not to participate for fear of running into some problems down the road vis-à-vis the act. Clauses 31, 32, regulations under clauses 33 or 42, and emergency orders do not apply if you're engaged in conservation measures. So does this give you some deal of comfort on this particular issue?

The Vice-Chair (Mrs. Payne): Does anyone want to respond to that?

Mr. Doerksen: Are you referring to paragraph 36(1)(b)?

Mrs. Kraft Sloan: Yes. It's in the bill under ``Application of Prohibitions''.

Mr. Doerksen: Can we clearly, understandably, and with assurance, interpret that to apply to private landholders?

Mrs. Kraft Sloan: Well, you're a person. It says they ``do not apply to persons who are engaging in (b) activities in accordance with regulatory or conservation measures for wildlife species''.

Mr. Peake: Continue.

Mrs. Kraft Sloan: Okay. You may have me on that one.

Mr. Doerksen: If that is the interpretation, I certainly think it needs to be clarified. That has not been the understanding of our group or the groups we've been in discussion with on this.

Mr. Pope: I don't think any of us would fall into any of those categories - aboriginal treaty, land claims agreement, self-government agreement or co-management agreement that deals with wildlife species.

The Vice-Chair (Mrs Payne): Denis, do you have a comment?

Mr. Peake: Yes, I have a copy of the proposed revisions to Bill C-65, Canada Endangered Species Protection Act, National Agriculture Environment Committee. This is its paper it endorsed.

There is a section in here for changing clause 33. There is a section at the back for removal of clauses 66 to 76. This is with the National Agriculture Environment Committee and CFA.

Mrs. Kraft Sloan: The National Agriculture Environment Committee was part of the task force that endorsed those sections originally.

Mr. Peake: This is its proposed revision. Those two items are covered in there.

Mrs. Kraft Sloan: As I said, it was part of the task force that originally endorsed those clauses.

The Vice-Chair (Mrs. Payne): Mr. Chair, do you want to resume your chair before asking your question?

Mr. Caccia (Davenport): No, I prefer that you stay in the chair, Madam.

The Vice-Chair (Mrs. Payne): Thank you.

Mr. Caccia: Thank you.

Mr. Doerksen, when you presented your brief there were a number of points you made about which I would like to comment on as quickly as I can.

In your summary, for instance, I fully agree with points one, two and three. They are points I fully respect and take fully into account.

On number four, I have difficulties in believing that a discouragement would take place as a result of Bill C-65, but that is, of course, something we may discuss again.

On number five, the bill has no intention of penalizing landowners who have protected wildlife in its habitat. If anything, it wants to bring on board as many landowners as possible on the issue of the protection of wildlife.

Believe me, we wouldn't be engaged in this exercise and be in this room today if all the effort made so far, mostly voluntarily, had produced adequate results. We have endangered species in the year 1997. Therefore, we are collectively asking ourselves whether or not we want to have the enjoyment of the variety and the richness of wildlife - and by that I mean flora and fauna - for our children and grandchildren and the like, hopefully of the same range that we are enjoying and that our grandparents enjoyed. Evidently, the voluntary approach is not adequate, so we have to take certain measures. But let me assure you there's no intent to penalize landowners who protect wildlife.

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In reading further, I can only say that under point 1, when you talk about clause 33 and its effects, the penalties are in there in order to protect all those concerned. If you don't have penalties, those who don't adhere to the law and don't pull their weight are treated the same way as those who do. There has to somehow be a recognition of those who do pull their weight in society and who will be in the majority - in this case, those promoting and helping the protection of wildlife - from those who don't. This is where the penalty comes in. Hopefully, the penalty will never be invoked - hopefully, it will not be necessary - but somehow in legislation, whether it is municipal, provincial or federal, there has to be an indication as to what happens if members of society decide to disrespect the values and the principles of the majority, those who like to advance the cause of wildlife protection in this case, including you.

In your last point you are seeking a clarification, and the answer to your question there is definitely yes. Your assumption is correct that paragraph 62(b) does apply to those areas defined in clause 3. That is where it applies and only where it applies. Before I comment on the Western Stock Growers' Association, that leads me to ask Mr. Pope, who said he has read the bill, whether he could indicate to us the sections in which he feels private property rights are affected.

Mr. Ward: If I might start while David continues, under clause 33 we're worried about the intrusion on private property, or the potential intrusion therein.

Mr. Caccia: Potential - that is all right, but can you give us an example?

Mr. Ward: We're talking about animals that may migrate back and forth across international boundaries.

Mr. Caccia: That is an interesting point you make. Yes, it so happens that Canada, by virtue of its right in the name of the Queen, has made some international agreements. When we do that, hopefully we do it to reflect the values of everybody.

We have a certain obligation. If a poor migratory bird happens to land on a rock that is on private property, somehow we would like to be able to make sure this migratory bird is protected. I'm sure the vast majority of your members would gladly see to that. So where is the damage?

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Mr. Ward: I would agree with the intent of migratory birds going back and forth, and there may in fact be some other animals that may be doing the same thing. In fact, I'm close to the border. In the end, though, when we get down to the very bottom, if we do not have the protection of the private property rights of people and society....

There's no reason why we can't make the Canada Endangered Species Protection Act work within the private property rights of our individual citizens. We're not saying we're going to trade one off for the other. What we're saying is that through a cooperative approach, we think we can do both.

Mr. Caccia: Yes, fine, I do accept what you say up to a point. I would also add that together with property rights, there are also property duties. I'm sure you people discharge those every day as well, and in a variety of manners. In this case it would be the duty of helping your government to discharge its international obligations, which I am sure the vast majority of your members would have no objection to because they enjoy the view of migratory birds as much as the urbanites do.

Mr. Ward: I would agree, but within the context of private property, we must live within a free and also a responsible society. I think what we're both driving at is that we need to be responsible within the private property.

Mr. Caccia: So, if the members of your association also understand their property rights within the context of certain duties, I don't see much difficulty in operating with this bill, which brings me....

I'm taking up too much time, so I want to....

The Vice-Chair (Mrs. Payne): You have the privilege, Mr. Chair.

Mr. Adams: You are the chair, Mr. Chairman.

Mr. Caccia: You are quite right, so maybe I should go on to the second round and let Mr. Adams go ahead.

The Vice-Chair (Mrs. Payne): Thank you.

Mr. Adams.

Mr. Pope: If I could respond, the chairman asked me a question while I was leafing through....

I guess one of my big concerns is clause 52, which reads:

For the purpose of ensuring compliance with this Act, the regulations

- which we haven't seen, by the way, and the regulations in the United States have been even more onerous than the act -

or an emergency order, an enforcement officer may exercise the powers of search and seizure provided in section 487 of the Criminal Code

Here again we're getting into the criminality aspect of this act; it's really quasi, but here we're right into the Criminal Code.

without a warrant if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be feasible to obtain the warrant.

So we're into the kinds of heavy-handed procedures that are used more in, say, drug busts and so forth - you're more associated with it - but here we have it applied to this act.

On the previous page you have ex parte applications to a judge when ``entry to the dwelling-place has been refused or there are reasonable grounds for believing that entry will be refused''. Here again we're doing away with the usual search and seizure provisions of reasonable and probable grounds to think that a crime has been committed.

These things are interspersed throughout the bill, Mr. Chairman. If we had time, I could go through every one of them with you.

Mr. Caccia: Madam Chair, I would like to perhaps attempt to reply on my second round.

The Vice-Chair (Mrs. Payne): Mr. Adams.

Mr. Adams: Thank you, Madam Chair.

Gentlemen, I have enjoyed your presentation, and I enjoyed the presentation of the Canadian Cattlemen when they were in Ottawa. I want to say that. One of the things that struck me then, and which strikes me now, is the obvious pride in the range that you control and have perhaps controlled for, as you say, many generations. They're not just fields, as perhaps we in the east would think of them, but are natural ranges with great biological diversity. So there's no question that we certainly need your cooperation, but we need the cooperation of all Canadians. In many ways, however, we need more cooperation from you simply because of this treasure that you control.

I want to go to the part of the brief that dealt with the U.S. legislation. To me, that is one of the reasons that we are bringing this legislation forward now. All of us in Canada can look south to see how far the system can be degraded. They have far more endangered species, extirpated species, extinct species, than we do. You have only to look east in Canada - and eastern Canada is much better than the United States - to see that in Ontario, for example, we have far more species on these lists than you do. That's society moving in, urban society and rural society, and affecting these species. To my mind the loss of species reflects the degradation of the whole system we live in.

.1855

I would suggest to you that at the moment in all of Canada we are better off than the United States was almost twenty years ago, when it brought in its legislation. I mean that. In other words, we have more than twenty years' lead. If we do it right, we can go these fifty years ahead, and we'll look ahead and we'll be even further ahead if we do these things properly.

So back to the preamble. We have these examples around us of where things went wrong.

This is from the U.S. General Accounting Office, which is like the Auditor General in Canada. The Auditor General looks at the government and assesses it. This assesses eight or ten years of their legislation. It says ``Almost 90 percent of all consultations'' - these are cases that were initiated in a period of four or five years - ``were resolved informally''. It says ``Over 90 percent of the formal - those are the remaining - ``consultations...concluded that these actions'' that were suggested ``would not harm listed species''. It says ``Of the less than 10 percent of the formal consultations'' remaining - the actions that really went through - that concluded that those actions ``would likely jeopardize the species, almost 90 percent provided reasonable but prudent alternatives that would allow'' the development project or the farming practice to proceed. In this period of four or five years, only twenty permits were requested and only one permit for the action that was proposed was denied.

I heard you talking about their legislation before. First of all, as my colleague has said, because twenty years ago they were worse off than we are, their legislation is more Draconian than ours. But even with that, the statistics don't suggest a lot of cooperation went on. Most of the cases were dealt with cooperatively, and with only a very few were you left with the law coming in. So it's cooperation, I think.

The other thing is if we study these 90% that were dealt with in this way, it was shown that the landowner or the mine operator, or whoever it was, had applied due diligence. In other words, there was a nest and they drove around it as much as they could; they didn't just drive to and fro over a nest of that sort.

I know you gave some figures in your brief about the impact of the U.S. legislation, but this just suggests to me that even it, which is much stronger than ours....

I might add one more thing. Their costs, in the cases where there were costs, I would suggest to you, were much greater than ours will be, simply because they were further down the cycle. They were bringing more species back. We're hoping not to have to bring species back, because we don't want them to get up to the endangered level.

I just wondered where you got the information about the U.S. experience and the costs and the effect of that legislation.

Mr. Ward: If we go back to the quote I can.... We have it within our major brief. There are six or seven different areas. It's in the executive summary. It's listed at the bottom. It's in the major body of our brief, I believe, on the second or third page. There are four or five different places we've drawn our information from - and I think fairly reliable information.

To get back to the regulations, what we've added, or what we fear we may add, is another parameter to farming or ranching. Not only do we have to look after our livestock and look after the environment as best we can, but now we may have an extra job, and that's to look after the proposed regulation that may come at us during these recovery plans. I would suggest farming and ranching may not be able to afford that onerous regulation within a recovery plan.

.1900

That's not to say we're not interested in a cooperative manner of doing that. We just do not have the time to sit on committees day after day, or travel to regulatory meetings, or do those types of things that go on and on. There are other ways to do it.

So that's a very onerous thing that may be imposed upon the farming and ranching community. It's just one more thing that has to go into the margin of farming.

Mr. Pope: If I may respond, Mr. Adams, you said that in your opinion, we were far ahead of the Americans in our habitat and species -

Mr. Adams: My point is, we're trying to prevent things happening rather than cleaning them up.

Mr. Pope: Right. I would suggest to you that maybe it's because we have not had this type of legislation for the last 25 years. They've had it, and one of the things we mention in our brief is that the way it is now under the proposed act, an endangered species will be looked upon by many people who own land as a liability, not as an asset.

That's the way it's been looked upon by many people in the United States. It has resulted in some very unfavourable results, that nobody envisaged at the outset, or ever thought would happen. Unfortunately, if you have oil on your place, or if you have diamonds on your place, it's an asset. It enhances your property. If you have an endangered species on your place, then under these kinds of laws it's not the same.

Mr. Adams: My suggestion, though, is that these are fairly neutral stats I have here, and they do suggest that in the vast majority of cases the legislation triggered cooperation. Do you see what I mean?

Mr. Pope: Yes.

Mr. Adams: It certainly would be my hope that this is what would happen here, that it would trigger action - in our case, earlier than occurred in the United States - and that therefore the chances of cooperation would be that much greater and the expenses that much less.

Mr. Pope: I have read many books in this regard in the United States, and there are other sides of the coin, Mr. Adams.

Mr. Adams: There always are.

Mr. Pope: There have been horrible situations where it's resulted in very unsatisfactory results.

The Vice-Chair (Mrs. Payne): Thank you very much -

Mr. Adams: Madam Chair, can I make one point here?

The Vice-Chair (Mrs. Payne): Mr. Adams, we're going to go to a quick second round.

We'll start off with Mr. Taylor and then Mr. Steckle.

One quick question, with a quick answer.

Mr. Taylor (The Battlefords - Meadow Lake): I think I can be fairly quick. I'm not sure how I got my first question on the second round, but I'll do my best.

Like one of the members opposite earlier today, I want to preface my question by saying I'm very sympathetic to the private property landowner position that you bring to the table. I'm very sympathetic to the position brought forward by the people working in the forest industry and to those who earn their living by fishing, who have also suggested before this committee that this legislation could have an economic impact on them or their families. I believe it is a matter that has to be considered by government in considering this bit of legislation.

To me, the overall reason for our being here today is the fact that there are identified endangered species and there is not currently action being taken to ensure the survival of those species. The intent is not to penalize people who happen to be in a position to help protect the species identified. In quite a number of cases, especially here in western Canada, we recognize we're talking about seven species out of thousands that may be included here.

So my perspective is that we need legislation that, first, ensures the survival of a species, and second, takes into account other matters. But our first goal must be the protection of the species.

I hope my question to you is not a rhetorical question as such, but it comes from your premise here about land ownership and private ownership of that land.

.1905

The ownership that exists today comes as a result of a rule established by our society in North America. Prior to the establishment of the rule of private property and the introduction of the human species and cattle to the western prairies, the ownership of that land lay with the animals that used it - the birds, the wildlife, the plants. They inhabited that land. We took it from them. Do you not agree that we owe compensation to those plants and animals that we took 150 years ago and that compensation is today being provided by legislation that ensures their survival?

Mr. Ward: I guess you would have to define compensation. Certainly, man has become a part of the environment. We can no longer go back to an era when only the animals were here.

I live about three miles from Head-Smashed-In Buffalo Jump, and man has intervened within that ecosystem for close to 6,000 years. I suggest maybe the buffalo have grazed for 7,000 or 8,000 years. They have been intertwined and there is interaction between those.

We can't go back that far. People are a part of the environment now, and I think all we're asking for is that not only do we include the necessary legislation to work with those animals that are endangered, but we have to have the second parameter of people within that environment as well. The people are there; we have to include the people within all of the recovery plans. That's not to say that people don't have some duty to look after those, and we're not saying we wouldn't do that. We're saying that in some cases private property will have to be managed within that.

The ultimate case will be if my place has a recovery plan on it and I go to sell my land. If my land is worth less than that of my neighbour next door who doesn't have a recovery plan, then there has been a true confiscation of my private property.

Mr. Caccia: It could be worth more, though. It could go both ways.

Mr. Ward: If it's worth more, then I have a value to that. I have a quasi-ownership to that property, being the endangered species, and I would work my best to enhance that so I can have the extra value. What I'm saying is, put us in a position where that extra value is there. Don't make the situation so onerous as to make the private property worth less in the end.

Mr. Pope: If I might add a supplementary, Norm, we cannot get away from the fact of life that the human species is here. There were aboriginals, native peoples, here before we were here. They were interacting - positively or negatively, who can say? The Europeans were not involved. But for the last 200 years we've been here, and from all statistics, certainly in Calgary, every North American city seems to be growing. So we can't just ignore the human condition. And there will be more and more stresses placed on the environment. But we can't carve out man and just completely take out a portion of the land and say we're going to take it back to what it was pre-European settlement. We just can't do that. That's unrealistic.

The Vice-Chair (Mrs. Payne): Thank you, Mr. Pope.

Mr. Steckle, please.

Mr. Steckle: Thank you, gentlemen. You've brought a perspective to these hearings that I share. As a farmer, I understand the kinds of concerns you have, and I think this is one of the things that has heightened my expectations of what we would hope to achieve through this process.

The whole notion of land ownership, the stewardship of that land, how we would be compensated should we go afoul of the law, and how we can protect what we believe is our right of property is something we're all concerned about. But I think the longer I go through this hearing process we've entered into, listening to witnesses, the more I conclude that somehow we must be close to right - and I said this once before this week - because we have gone too far for those who are, like you and me, landowners. That is the view. For some we have gone too far. For those who love the trees and love the environment in a different way - we appreciate it also, but in somewhat of a different way - that group feels we've not gone far enough. So somehow we're in the middle.

.1910

But the American plan is not right either. This is what someone in the U.S. said just recently:

The Endangered Species Act should reward landowners for good stewardship. Creating incentives for private landowners may be the most important reform of all.

Now, that was said by a group named the Environmental Defense Fund. Their suggestion is that the 105th Congress should reform the act to offer private owners incentives to protect wild species as a group. They say this fresh attitude could create an alliance instead of animosity between wildlife preservationists and rural landowners in the next few years. EDF says the act now offers landowners no rewards for aiding a species, only criminal penalties and virtual land confiscation if a species...or a landowner takes to protect a species...by damaging habitat.

So I think they view their legislation as being Draconian, as someone has mentioned. They see it as not working. I think our legislation can work, and I can assure you I have greater confidence that it will work because I have been here for quite a number of hearings and I have been part of this as we go into clause-by-clause and ultimately bring forward the legislation. I can assure you I feel much more confident that this legislation is going to have a fair balance and that the right of the rural community, the farmers, those who own property in rural Canada, will find a degree of protection in this proposed act.

I share your interest in the preservation and the encouragement of species; the mallard, the wood duck.... In my area it was the bluebird; the North American bluebird. It's being done in many other areas as well. I think we all share in that, and I think we can see an enhancement of values, although we're not primarily interested in the monetary aspect; we simply want, as we all do, to see the encouragement and enhancement of the environment we live in.

I share your concerns, and I can assure you that as we go through this there will be improvements where we can make them. But it's not as bad as we may have thought.

Mr. Ward: If in fact you think you have a sort of balance here right now, and I would suggest maybe you do, if you have people from the extreme environment committee saying we need more and wanting, as a goal, to conserve biodiversity, and you have a group of landowners here who also want to conserve biodiversity, then I fail to see the argument why we cannot conserve biodiversity while looking after my private property rights. We're both going in the same direction. I'm only asking for the second parameter, private property rights, to go with it.

I think the underlying concern here, and we keep skirting the issue, is the finance minister is still in the background, asking whether we have enough money to do this. Because Canada's resources are limited in this regard, are we then asking whether in order to make this thing work we have to do some form of confiscation?

Mr. Steckle: I think in the case where someone makes, as an honest attempt...where due diligence is exercised in providing protection, I believe this bill will protect you.

Mr. Pope: Unfortunately, the only way we can really answer that question will be by litigation somewhere down the line. Unfortunately, you may be right. We're faced with some of these things, and litigation, and we have things we need to do other than being at a courthouse, and that has been a lot of the experience in the U.S. as well.

The Vice-Chair (Mrs. Payne): Mr. Knutson.

Mr. Knutson: Just on this last point of confiscation. In this country there's no history of confiscating without compensation except by passing a special law of Parliament, which is not in here. If you're talking about the Pearson International Airport developers, which was a special case when a deal was signed eighteen days before voting day, that is an extreme case. There's nothing in this bill that suggests that land can be confiscated without compensation. This is not a bill about confiscation.

.1915

If you want to take the worst-case scenario and criticize the bill from that point of view...whether it's the policeman who's going to search and seize your property...but I'd suggest that at the end of the day it's not a very persuasive argument to always be looking at the most extreme case possible.

Mr. Pope: Where in this legislation does it provide for compensation for programs being implemented on specific pieces of land?

Mr. Knutson: It's by inference in the recovery plan, in clause 8.

If you want to say that the language around compensation should be strengthened, then fine, that's a reasonable, legitimate argument to make. I think we'd all agree that you treat differently the fisherman in Newfoundland who's 30 years old...if we declare cod an endangered species and they can't fish. I don't think any of us would suggest that you compensate them for the next 35 years that they're not going to be able to fish. We don't take them up to the age of 65. But certainly it makes sense that if you're carving off a woodlot - and I mean no disrespect to Newfoundland - or carving out a piece of property or whatever, or let's say a grizzly bear eats one of your cattle and it's against the law to shoot the grizzly bear, that you compensate the person for the cattle they've lost. That's within the bounds of reason.

Mr. Pope: But subclause 8(1) says:

The Minister may,

- so he may or he may not -

with the approval of the Governor in Council, enter into an agreement with the government of a province, a municipal authority or organization or any other person to provide for the payment of contributions to the costs of programs

- so it's programs -

and measures for the conservation of wildlife species.

Now, we're talking about what happens when programs are implemented on a piece of property and that property is restricted, either for grazing or cropping or whatever you might be doing with your agricultural land. The idea here is that this provides for programs and for wildlife species, but what about the degradation of value for that land by implementing these programs on it? That's our concern.

Mr. Knutson: On reflection, I'll reread the bill. I hear your argument that you want tougher language around the issue of compensation. I think it's a legitimate point of view. As a starting point, I'm sympathetic to it.

The part of your submission I'm not sympathetic to is taking the blackest, darkest view and saying this is what's going to happen when it's not in the bill. There's nothing in the bill about confiscation without compensation. It's not there. It doesn't exist, and it's not part of Canadian legal jurisprudence.

Mr. Ward: I would appreciate that. Maybe it's time to step back and fully address that issue between the committee and agriculture. Maybe we need to take time out of a month or two to fully address that, because that's a very large hang-up within the agricultural community. When the word ``may'' appears in here, it doesn't allay the fears out there. What we need to do is step back and set up the mechanism we work through so that everybody knows ahead of time. We would welcome the opportunity to participate in something like that.

The Vice-Chair (Mrs. Payne): Thank you, Mr. Ward.

Mr. Chair.

Mr. Caccia: Madam Chair, thank you.

When we were interrupted earlier, Mr. Pope, we were talking about clause 52. You raised the point that regulations made in the United States sometimes are harsher than the legislation itself. That may well be. In the Canadian case, though, we have a committee, called the committee of statutory instruments, whose task it is to constantly review the relationship and the concurrence of regulations with the legislation. Therefore, the U.S. example does not apply to Canada.

.1920

There may be some mistakes perhaps from time to time, but the Canadian regulations have to flow from the legislation and cannot be just rewritten without due concern for the powers set in the legislation.

This takes me to the other point in the executive summary of the brief you have presented. It's in here again. The American experience is valid for the U.S.A. It does not apply to the Canadian scene. We have a parliamentary system, not a congressional system. The powers of the executive are completely different in the United States from the powers of the executive in Canada. Therefore, any reference to the American experience.... We can learn a few things, no doubt, and we did in Vancouver when we heard B.C. Hydro. But to compare the two and say that one experience will lead to another one in Canada is really stretching it beyond the acceptable reality.

This takes me then to the next page of your brief, and I'm sure a lot of work went into it. There are statements in it that are neither here nor there. To claim that the proposed legislation runs contrary to the presumption of innocence is quite a heavy statement. The conviction will be based only on proof beyond reasonable doubt, that it will take place even if that is not established....

I would like to take you to the bullets on the following page, the page that is marked with ``Change and Incentive''. It is unnumbered...it is Roman iii, I should say.

The first bullet deals with federal powers being extended. Those powers are already there. They are not being created de nouveau. The federal powers do exist when it comes to interprovincial matters.

The third bullet is a pure fear-mongering bullet. There is no need to make that point because there is no justification for it.

The fourth bullet:

Private prosecutions give individuals the power of prosecution formerly reserved to the state, thus opening the door to legally sanctioned harassment.

This is fear-mongering. It is not necessary to go to such a point.

The sixth bullet:

There are no statutory protections for an accused person....

This is absurd.

The next bullet, the seventh:

The Offenses and Punishment section is extremely onerous, especially considering the burden of proof....

Some other colleagues have already dealt with that. They are stronger under the Fisheries Act, and they've been there for decades and decades. They are invoked only when it is absolutely essential, but they are invoked because there is something larger than the private good and it's called the public good. When the two come into conflict, somehow a choice has to be made in the interests of everybody. This has been the history of humanity over the centuries.

I am going to stop here because time is running short. I would welcome your comments.

Mr. Pope: I guess my concern, Mr. Chairman, is that usually the burden of proof is -

Mr. Caccia: Madam Chairman, not Mr. Chairman.

Mr. Pope: I'm sorry, Madam Chairman.

I guess a lot of these penalties are criminal penalties if you can go to jail and be find $500,000. But in clause 66 they throw in a lesser test, which is:

The burden of proof in an endangered species protection action is on a balance of probabilities.

Then when you go to clause 77 - we're just guessing here - here we have an action, I think an offence, where somebody is being charged. I think a charge would be considered an action. Then you get into penalties of ``Every person who contravenes section 31 or 32 or any prescribed provision of a regulation'', which we haven't seen, ``or an emergency order'', is guilty of an indictable offence - under partial and summary indictable offence for $100,000 in one instance and $500,000 in another, and jail of two years or five years.

.1925

Mr. Caccia: Madam Chair, the question is, will they apply to the stock growers, and the answer is most likely they will never apply. They will apply all these enforcement measures to people who are engaged in deliberately collecting and trading parts of endangered species. They will apply in completely different sectors that will have nothing to do with the people you represent. But that cannot be spelled out in the legislation, of course. This is the history and the reasoning for the legislation.

The Vice-Chair (Mrs. Payne): Thank you, Mr. Caccia.

Did somebody else have another comment? In that case, we'll go to Mr. Forseth and Mr. Adams very quickly.

Mr. Forseth: Thank you.

If we're looking at the tone of the legislation, let's turn over again to clause 52, because that was the search and seizure and beginning to invoke the Criminal Code and so on.

The departmental explanation for that is section 487 of the Criminal Code, which describes the procedures to be followed by an officer who wishes to search without warrant any place for evidence of an offence against an act. A justice receiving information under oath from an officer who has reasonable grounds to believe such evidence is at a place may issue a warrant for a search of the place. Obviously, you can go to a justice and get a warrant for search. However, an officer can conduct a search and seize items without warrant when the conditions for a warrant exist when circumstances arise where it's not feasible to obtain a warrant because of delay and natural circumstances. Why would it be necessary? The legislation controls activities that can occur far from any settlement, way out in the countryside. Situations may arise where specimens of wildlife are at risk, in transit, or hidden in a truck or something and there are reasonable grounds to suspect a violation. Under such circumstances it would be unreasonable to expect an officer to first have to drive 100 miles and, during a court period of time, obtain a warrant to conduct a reasonable search if he has reasonable and probable grounds to search a vehicle or a tent out in the wildlands for a specific violation.

There is a further explanation. Too many different situations can occur to be able to include all of those where there are reasonable grounds to conduct a search without a warrant. Consequently, the courts will judge if an officer was reasonable in conducting a search. If a court decides, for example, that the evidence could easily have been protected while an officer obtained a warrant, then the search may be considered to have been unreasonable. In addition, protection against unreasonable searches and seizure is already provided for under the Canadian Charter of Rights and Freedoms.

So in looking at clause 52, it is more an enabling piece of legislation for an enforcement officer to give him some power to act under the statute rather than it being an unreasonable situation in which a landowner or rancher is going to have his house violated. It's enabling an enforcement officer, like a conservation officer, to actually perform his duty in the field. I take it you didn't see it that way?

Mr. Pope: No.

Mr. Forseth: What about clause 8? Clause 8 talks about where the minister may. It talks about an agreement, and an agreement is not an order. An agreement implies peoples to a party, that they sign an agreement. That is not a directive or an order; it is an agreement. In order to have agreements you've got to have, perhaps, the local landowner, or whoever, to participate in that, and as a result of those actions there may be some financial compensation or some payment to permit the person to fulfil the program they've gone along with. Obviously, the clause falls short of where land is devalued; that because of the habitat protection the land can't be subdivided for further growth or a road is not going to be able to be put in, and so on. So the assessed value of the land or the money that was borrowed for plans for future economic activity is lost. That is not contemplated by this section.

.1930

I ask you to look at this section again and quickly respond to us - maybe within the next few days - as to how limited compensation terms could be improved in the act. We're going to have to do that in the next few days because we're going into clause-by-clause study in just a few days. We don't have the luxury of a month, which you referred to a little while ago.

Obviously, the act is not going to provide the major mantra so that we're saying, ``No expropriation without compensation''. I do have some examples from the Ontario legislation where that was the case and there was no remedy.

Mr. Ward: We will endeavour to provide you with those in short order.

I described a different mechanism that may be close to expropriation. I think we would be able to expand on that to maybe include some of those areas that are a concern and that you have addressed. It would be similar to what the oil and gas industry has done with adverse effects, with up-front compensation for going in on the land and those sorts of things. That would in part deal with the harm to private property.

The Vice-Chair (Mrs. Payne): Thank you, Mr. Ward.

Mr. Adams.

Mr. Adams: Thank you, Madam Chair.

I want to repeat the point I made before. I think your appreciation of biodiversity is greater than that of those of us who have a lawn and some flowers, and greater than that of most farmers, simply because of the nature of the range you deal with. I don't say that just to be friendly. It's just that I see this legislation as a small facet of maintaining biodiversity. I know you're interested in it.

Mr. Doerksen and Mr. Peake, in connection with item 4 in your brief, the reference to paragraph 33(b) and your interpretation, you say ``any wildlife species, whether living or dead''. But it doesn't apply to any wildlife species; it only applies to the cases referred to in paragraph 33(a). I think that was your concern. I know it's only one small part of your brief, but that was your concern, wasn't it, that it goes to any species? Clause 33 is your item 4.

A witness: With respect to paragraph 33(b), I suggest that if this is legislation, it's very open to interpretation. When I read ``knowingly engaging in activities that damage or destroy the residence of the individual'', I see that as being wide open.

Mr. Adams: It's your point where you say:

We note that the limitations governing 33(a) do not apply to 33(b) and that the individual does not have to be endangered or threatened nor cross national boundaries.

I'm assured - and we will make sure of it - that is not the case. Okay?

Mr. Doerksen: Thank you.

Mr. Adams: By the way, if it isn't phrased properly, we will see.... It's not intended to read this way. It deals with the sorts of species and the sorts of situations that the rest of the legislation deals with.

My other point is that there are four provinces that already have legislation.

Mr. Beever, you operate in one of those provinces. Have your life and your work changed since the legislation? Do you have any examples of the effects of the Manitoba endangered species legislation on your operation or on those of your friends?

Mr. Beever: No. I can't honestly say that I've encountered any substantial changes under that legislation. I think the fear...and I think to a large degree it is fear that we are dealing with here, because we don't know what the bill may hold at the end of ten or fifteen years.

A subject that's much discussed right now in Manitoba is conservation easements. If an individual desires to put an easement on his property and thinks it's in his best interest - and likely he is right, it is - but tries to sell that land, it's caveated. If the individual who's buying it doesn't think the easement is such a great idea, there's a definite devaluation of the land.

I think we need to be aware of those types of things. We have the opportunity here to develop a bill that can be balanced and can work for everyone, and I hope we can take that opportunity, because our livelihood and our economics depend on the use of the land. If this is infringed upon or we don't have that capability, it makes it extremely difficult for some of us to eke out a living if we have to reduce our land base or change some of the things we are currently doing.

.1935

Mr. Adams: Has the endangered species legislation made the easement thing more complicated? Is there any evidence of that?

Mr. Beever: No, the easement thing is still being discussed. We are in the process of having those discussions right now. But it's something, at least among some of our producers, that is a real concern. The idea was to tie it up in perpetuity, and that's unfair to do, because we don't know what will happen ten or fifteen or twenty years from now. We just have to be cautious.

The Vice-Chair (Mrs. Payne): Mr. Peake.

Mr. Peake: I would like to make a short comment having to do with your fear or confusion. Where I live we have the burrowing owl. He's a common resident of our area. Our counterparts in the environmental community keep telling us it's a loss of habitat that is the prime concern of this burrowing owl. Where I live, it hasn't changed for over a hundred years. That's from history and one thing and another that I've been aware of.

The burrowing owl is subject to many problems. Anything bigger than he is eats him. For anything that walks or flies and is bigger than he is, he's a meal.

He also suffers greatly from his migration. He gets run over consistently. That's another problem with driving in our area. At dusk, when he's foraging along the roads for his grasshoppers, he's a prime.... Nobody wants to do it, but it happens consistently. One biologist told me that on a trip through Idaho and so on he got so tired of counting dead burrowing owls on the road that he quit.

We have our environmental community telling us it's loss of habitat. I happen to live in an area with 2.5 million acres of native range. This is tremendously good habitat for the burrowing owl.

What I'm saying is that there's confusion out there. Somebody is telling you one thing....

That's my perspective on the burrowing owl. Don't at any time let someone tell you he or she has all the answers, because when you have all the answers you're only kidding yourself.

Mr. Caccia: Mr. Peake, one thing to include in your equation or your studies - and you can do it better than we can - is also the possible impact of herbicides and pesticides in the last fifty years.

Mr. Peake: I can take the buffer of my property in a ten-mile radius and the pesticide and herbicide use in that area is nil -

Mr. Caccia: Ten miles is not very much.

Mr. Peake: - in a critical habitat area. In other areas of critical habitat, not in a circular area but longitudinally, it is much farther than that. We live in a very big, open country.

The Vice-Chair (Mrs. Payne): Thank you very much. It has been an interesting and valuable exchange. I'm sure nobody here wants to be reflected as a bogeyman. Certainly our government would welcome any further comments you might wish to send us in the next couple of days. As we said, it will have to be in the next couple of days, though.

We're going to break for about five minutes.

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The Chairman: All right. We are in the final stretch of the day.

We are glad to welcome the Alberta Forest Products Association and the Canadian Association of Petroleum Producers. Would you like to introduce yourselves. To start, you'll have 15 minutes each. I will give you a little signal at 10 minutes, and then we'll have a good round of questions. Welcome to the committee.

Mr. Denis Hawksworth (President, Alberta Forest Products Association): Thank you, Mr. Chairman. First, we would like to thank the Standing Committee on the Environment and Sustainable Development for this opportunity to present our brief to the proposed endangered species legislation.

My name is Denis Hawksworth. I am president of the Alberta Forest Products Association. I'm also general manager of forest resources and lumber for Weldwood of Canada Limited, Hinton Division, in Hinton, Alberta. I will be presenting the brief.

Other members of our delegation here today include: Andrea Moen, our legal counsel, who is here to answer questions on the legal side of things; Rick Bonar, regional biologist for Weldwood of Canada Limited, Hinton Division, and Rick is also chair of the Canadian Pulp and Paper Association's biodiversity committee; and Garry Leithead, executive director of the Alberta Forest Products Association.

The Alberta Forest Products Association supports federal legislation as part of Canada's international commitments. Further, we support the listing of species at risk by COSEWIC and the development of recovery plans based on scientific criteria. The keys to species conservation are: cooperation, preventative action, and ecological management.

A cooperative approach.

Where species are already listed by COSEWIC, we believe the proper mechanism to achieve the goal of protecting and conserving endangered species as stated in the original Canadian Endangered Species Protection Act: A Legislative Proposal, 1995 is through a cooperative approach. Building a dialogue and understanding between parties can achieve more than will ever be achieved through litigation.

To quote the Environment Canada news release, ``Canada works best when Canada works together''. In the legislative proposal, the government cited the importance of partnership-based and voluntary stewardship efforts. Local action and cooperation has been able to bring together parties that would not generally interact to achieve a common focus.

However, the Canada Endangered Species Protection Act, Bill C-65, will do little more than encourage resources to be directed at the legal profession and the courts as we attempt to untangle the labyrinth of bureaucratic requirements, individual responsibility, and vague scientific requirements.

Preventative action.

The forest industry recognizes that along with economic opportunity is a great stewardship responsibility to look after Alberta's forests by protecting the biodiversity and maintaining ecological integrity. A priority is preventing species from being listed as species at risk. In response, the forest industry in Alberta is providing funding and volunteer effort for many initiatives. These initiatives include: the Alberta Forest Products Association's Forest Care program; Sustainable Forest Management Network of Centres of Excellence; the Foothills Model Forest, a part of Canada's model forest network; the Alberta forest conservation strategy; and many species-specific wildlife initiatives.

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Bill C-65 does not recognize initiatives aimed at species conservation and does little to enable the development of similar initiatives in the future.

Ecological management.

Management of individual species needs to be done within the parameters of an overall management plan, not exclusive of other species, since we simply do not understand the trade-offs that will occur. Directing legislation towards one element of ecological management will constrain the options available to manage across the entire ecosystem, will jeopardize the ability to manage ecological processes, and could result in more species being at risk, rather than fewer.

In the legislative proposal, it was stated that the principles would also emphasize the need to base our conservation initiatives on an ecosystem approach featuring the best science available. This is what we are proposing.

The adversarial approach.

There are specifics in the bill that cause the Alberta Forest Products Association grave concern. These specifics are the approach of the act, the civil cause of action, and definitions.

Instead of encouraging cooperation, Bill C-65 encourages an adversarial approach by introducing litigation and through the use of mandatory language that does not allow the flexibility required to deal with species at risk. The type of legislation proposed in Bill C-65 follows the American model and will only ensure that cooperative action will be limited, due to the threat of legal action and substantial penalties. Instead of putting resources and funding into research and recovery of species, companies will have to set up war chests to deal with the litigation. The traditional approach in Canada of dedicating human resources and funds into achieving real goals in society, rather than the court, has served us well. This should be the focus of the legislation.

In summary, we recognize the international commitments Canada has made and that endangered species legislation is a component. In meeting this commitment, we must return to the intent of endangered species legislation as outlined in The Canadian Endangered Species Protection Act: A Legislative Proposal, 1995.

We support the listing of species at risk and the development of recovery plans. We support the government's objective of establishing a cooperative approach and feel this is the only way to deal with species at risk.

However, Bill C-65 restricts the options available to alleviate situations and opens up parties to legal challenges rather than enabling actions to resolve the very situations the program is set to deal with. This act could, and likely will, lead to extensive and costly litigation, the only beneficiaries being the legal profession. The dollars would be more wisely spent on the species at risk and preventing further species from being listed.

The commendable intent of the original legislative proposal has been lost, and many of the specifics noted there have simply been ignored. By the federal government's own words, the proposed legislation does not meet their original intent. We urge the committee to return to the principles enunciated in the National Accord for the Protection of Species at Risk in Canada and in the legislative proposal. Thank you.

The Chairman: Thank you, Mr. Hawksworth. You've been exemplary in five minutes and ten seconds. We'll appreciate that very much at the end of the day.

Who would like to speak next?

Mr. Rob McManus (Manager, Environment and Safety, Canadian Association of Petroleum Producers): Mr. Chairman, I am Rob McManus from the Canadian Association of Petroleum Producers. I'm the manager of safety and environment. I will try to be as brief as our comrades here.

This is Mr. Nick Schultz, who is also going to do a part of the presentation. I'm going to open with some comments, and then Mr. Schultz will complete our presentation and hopefully have some questions.

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I'd like to start by thanking you and the committee for making some time for us to share our thoughts. I would also like to reiterate the fact that the Canadian Association of Petroleum Producers strongly supports the objectives of the bill. To that end, we were a participant in the task force on the federal endangered species legislation and also submitted, prior to today, a brief with three other associations that also participated on that task force with recommendations for changes that we believe will improve the bill. That's the purpose of our presentation here today.

I'd like to re-emphasize a theme that has gone through the materials we have presented to the committee to date, which we have heard re-emphasized over and over today: a successful endangered species legislation must rely on cooperation and collaboration among stakeholders.

The Canadian Association of Petroleum Producers and the oil and gas industry in western Canada have a long history of involvement in dealing with wildlife issues, and in some cases in dealing specifically with species that are endangered. The success of those has been directly tied to the degree to which they are collaborative and involve all stakeholders on a voluntary and collaborative basis.

I want to very briefly outline one of those initiatives as an example of that collaborative approach, and that would be the woodland caribou strategy. In 1993 a committee was formed of government, industry, and conservation group stakeholders to develop a strategy in Alberta to address the woodland caribou, which had been designated under the Alberta Wildlife Act as an endangered species. Those groups came together and developed a series of initiatives that have included research to gather more information on the important ecological characteristics of woodland caribou and to develop operating guidelines for forestry operations and oil and gas operations. All of this has been done on a voluntary basis.

The regulations and guidelines that have been developed by that committee are used formally by authorities in the provincial government to permit activities. The broad objective of this group has been the long-term survival of woodland caribou in their native habitat.

The results to date have been encouraging. The population of woodland caribou has stabilized and is no longer on a decline, as it had been in previous years. While we aren't finished at this point with woodland caribou, it is an example of a collaborative effort that can work. There are many more I could talk about.

I'm going to leave a video with the committee on several years of the annual reports of the woodland caribou committee, which this committee may find of interest.

Again, that is a relevant case study because we are making the point that a collaborative and cooperative process can work. In fact, we see it as critical to the long-term success of this piece of legislation and we support that long-term goal.

I will now turn it over to Mr. Schultz for some specific comments on our submission.

Mr. Nick Schultz (General Counsel, Canadian Association of Petroleum Producers): Thank you, Mr. Chairman. You have our brief and I see members are thumbing through it as we talk. I don't propose to read it to you. I know you will digest it in due course and that your staff will certainly assist you with that.

I would like to highlight a few points and then leave time for questions. I appreciate that it's been a long day for you and we are at the end of a long day.

As Mr. McManus indicated to you, we began with our support for this legislation and approach your committee with a view to offering what we hope will be constructive comments designed to improve the bill and better assist you in achieving the initiative of the government in this area.

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We begin - as I guess a number of other people do but I don't want to dwell on it unduly - with a concern that in an industry like ours, which is very heavily regulated, where we deal every day with very comprehensive planning processes, and are required to study environmental issues very thoroughly before proceeding with a project, regulators are constantly called upon to make a public policy judgment about what is acceptable. These are not nice, clean issues. They are difficult issues in many cases, and judgments are made consistently about what counts as an acceptable project in terms of what can be mitigated, what is or isn't significant, how you can or cannot avoid something, or where you may simply have to accept there will be some impacts but consider it to be acceptable.

We have operated in Canada in an environment where the courts respect those kinds of judgments and don't intervene. Citizens have their opportunities in public hearings before regulatory bodies to make their concerns known. With this legislation we are opening a new door where people who think public policy decisions could be unreasonable may well have an opportunity to question the reasonableness of them in a way they haven't before. So we have that concern, and we have some suggestions about how to deal with it.

The first suggestion we have is similar to what you've heard from other people. It's an observation we make near the bottom of page 4 of our brief that perhaps the committee can consider broadening the arsenal of tools. We're not saying don't have prohibitions - obviously prohibitions are appropriate in some circumstances. But this is legislation that contemplates regulations designed to regulate an activity in a number of places. If one is going to regulate an activity, you're not into nice, clean prohibitions like ``don't kill something''. You're into a lot of complexity about what is acceptable or not and how things should be done.

It would be appropriate to build into that arsenal of tools a clearer recognition that compliance agreements are appropriate, voluntary action may be appropriate, and incentives may also be built into that. While it may be said that's all possible under the regulation-making power, we would suggest that perhaps some more explicit recognition of tools other than simple command-control techniques be incorporated. There's much literature, going back to the economic council's regulatory reform study in 1979, that talks about all of those kinds of instruments, other than simple command-control techniques, that we would invite you to consider.

While it's our preference that there be no private action, we also recognize that seems to be the direction in which the government wishes to go. But we do have some concerns and ideas about how the intent could be better achieved. We draw your attention to the fact that if the government has a concern about what someone's doing and wants to begin an inspection or investigation and pursue action, it must have reasonable grounds. That's explicit in the case of an enforcement officer who needs to make an inspection - I'm referring now to the bottom of page 5 of our brief - but there's no corresponding explicit requirement that a citizen who has a concern also be acting reasonably.

We recognize that you have put frivolous and vexatious language in there, but we think the bill would be improved if there was a clear requirement that reasonable grounds be established where there's a citizen complaint. On page 6 we have suggested that subclause 57(2) be amended to make it clear that the minister does not need to investigate if no reasonable grounds have been established for the investigation. We believe that's consistent with the scheme of the act and provisions elsewhere. It is unreasonable to require the minister to investigate something if there aren't reasonable grounds.

We have also noted that before the citizen can go to court you have to go through this request for an investigation, and the threshold for getting to court is that the citizen believes the minister hasn't acted diligently or reasonably. But we don't see an explicit requirement that there be an early determination by the court of that issue. The way it's written, a court could wait two years until the end of a very long trial before making that decision, and we think that's not consistent with the intent. We're suggesting at page 4 that subclause 60(1) be amended to require the court to make that determination up front, that this in effect becomes a procedural threshold commencing an action before a citizen is put to the expense of a defence.

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We also have a concern with the logic of a civil action when what is contemplated is a request for an investigation that, if the minister considered something had gone awry, would lead to a prosecution, with all of the protection a citizen has in a prosecution, when a private citizen who's unhappy with the result of the investigation is going to bring a civil action, which doesn't have any of those protections.

In our view, a citizen's action should be in the form of a private prosecution. To the extent that a citizen's action confers greater rights in terms of remedies than the minister would have in a prosecution, then we think that the minister's opportunities for remedies can be broadened. We talk about that at pages 7 and 8. I won't go into that in any great depth.

We also think it's appropriate that where a prosecution has been initiated, the minister should have the opportunity to enter into an agreement that would bring about compliance. In other words, somebody who may be stepping out of line can be brought back into line through an agreement, and a compliance agreement would bring the matter to an end. We don't see that in the legislation. We think that would contribute to the arsenal the government has at its disposal and achieve the intent of the proposed act.

Moving on to another area, we have a general concern that the linkage between this legislation and existing comprehensive planning processes be made a little bit tighter than it is. We recognize that an effort has been made to do that, but we do think it could be made tighter.

We did have a suggestion for an amendment that didn't fully take into account paragraph 36(1)(c). I'll come back to that in a moment.

Moving down to the bottom of page 9, we note that in clause 47 there's a general provision for permits and so on but it's limited to permits issued only by the Minister of the Environment, Minister of Fisheries and Oceans or Minister of Canadian Heritage. Not picked up here are a great many other federal bodies that issue permits and that engage in comprehensive planning processes, of which the National Energy Board is perhaps the most notable for this industry.

We think it would be appropriate to encompass all federal authorities that have a decision-making responsibility consistent with the objectives of the bill. We're suggesting that the language refer to any person or body making the decision that has addressed their mind to the matters referred to in subclause 46(2), which are the objectives of this legislation. So that would pick up things like the National Energy Board.

As well, the bill addresses the issue of avoidance and mitigation in subclause 46(2), but does it in a way that in the case, for example, of a pipeline project that's 1,000 miles long, could lead you to conclude that the activity is the entire pipeline, when the problem may simply be a stream crossing where there's some sensitive fish habitat, and all you need do is move the pipeline a mile upstream or downstream to avoid it.

We're suggesting that rather than the language now in paragraph 46(2)(a), the issue of avoidance be explicitly stated so that it's clearer what the intent is and so that we're not open to arguments, when we go to a hearing at the National Energy Board or something, that we have to move the entire 1,000-mile pipeline just to deal with what is in fact a local habitat issue.

We also have other suggestions for clauses 47 and 49 that address the same issue. We've addressed the compensation issue. I would draw the committee's attention to the skeleton of an idea of how the committee could address that issue, if it were so disposed, in terms of borrowing from ideas elsewhere.

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We also have a suggestion about drawing the council into the process more clearly by requiring that the minister consult with the council before listing a species. That is consistent with the intent of the national framework.

Finally, at page 13, we've made a proposal on some language that would better reflect the idea of cost-effective measures in recovery plans.

Thank you, Mr. Chairman.

The Chairman: Thank you.

We're now ready for questions. Who would like to go first, Mr. Taylor or Mr. Adams?

Mr. Adams: Thank you, Mr. Chair.

If I could pick up the very last part of your presentation, this skeleton of an idea, I'm just going to read it, although I really appreciate that you summarized it. We're on page 11, and the skeleton of the idea is: ``What is required is a clear statement that compensation is to be provided to any identifiable person...''. When you were moving ahead there, was that the skeleton of the idea?

Mr. Schultz: Yes it was, sir.

Mr. Adams: So if I read that sentence in, would that be useful? I think it would be, Mr. Chair:

What is required is a clear statement that compensation is to be provided to any identifiable person who suffers a loss of enjoyment of property, as described above in this brief, as a consequence of the making of any regulation or order in this bill.

Is that all right with you?

Mr. Schultz: Indeed. Thank you.

Mr. Adams: I think you were all here before, because we were late. You heard the points that I tried to make about the impact of the U.S. legislation. We've heard, by the way, some horror stories that I believe and some horror stories that I do not. I read out what I thought were some fairly neutral statistics that suggested that even under the more heavy-handed U.S. legislation, even in the more degraded U.S. environmental situation, the vast majority of cases that came up under their environmental species legislation were dealt with cooperatively. I don't have the figures here, but they said 90%, and so on.

With regard to your argument about cooperation, don't you think there is an advantage to having some legislation, some sticks if you like, and that it will in fact foster the sort of cooperation that I think you all described in your briefs?

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Mr. Rick Bonar (Regional Biologist, Weldwood of Canada, Hinton Div., Alberta Forest Products Association): I'd like to have a go at that, Mr. Chair.

You weren't specifically directing your comments at me, but I have two comments related to it.

First, with respect to comparison of the Canadian and U.S. experiences, I can only quote from my own experience. I'll just reiterate that Weldwood employs seven professional biologists. Our parent company in the U.S., which is a larger forest products company, also employs seven professional biologists. I can tell you that the Weldwood biologists spend 90% of their time figuring out how to keep species from not getting into trouble and how to manage our forests so that we keep ourselves in the enviable position we're in. Our counterparts at our parent company in the States spend 90% of their time trying to stay out of jail with respect to the ESA. So that's the difference. We have the same amount of devoted resources, but in different areas. I submit that I believe what we want to do in Canada is spend the time the way we're spending it now.

The second point is that, in Canada, we have an opportunity to get it right with this act. If we can just get the revisions and clarifications needed to avoid the opportunity to spend a lot of time arguing with each other in court, and if we work on cooperation, we can have a much better model than there is in the States. We don't think it's going to take that much to do it with the Canadian act, but what you have to do when you go through your debate on the act during clause-by-clause is inspect each and every clause to see if it is really a needed aspect in the spirit of cooperation. If not, is it in fact needed as a punitive measure for those people who commit an offence? Or is there the potential for abuse by people who do not feel their desires are served by the act? I submit that this is the sole criterion you should use to evaluate those clauses.

Mr. Adams: I listened to the presentations and I read the stuff as quickly as I could. Did you hear Gar's discussion before against frivolous court actions here as compared with the United States?

Mr. Bonar: Yes, I did hear it.

Mr. Adams: And did you find it convincing?

Mr. Bonar: No, I didn't. I guess I'd like to change the direction around and ask the members of the committee if they believe there are significant barriers to frivolous action, and that it's unlikely the clause will be used in vain or that it might in fact be used in a real need. Why have it there?

Mr. Adams: You can try it later on. I may be naive - I'm sure I'm naive when compared to you -

The Chairman: May I jump in to answer the question, or would you like to tackle it?

Mr. Adams: I was going to, but I'm sure you will as well, Mr. Chair.

I tend to think of it as a bit like the rules-of-the-road analogy that was there before. If we all drove safely and on the right-hand side, we wouldn't need any rules, but you have to have something. By the way, when you and I are in a different mood, we might well drive in a less safe way than we do otherwise. So the existence of that frame is useful when we're driving.

Mr. Bonar: I agree with you. The challenge you face is to balance those competing interests. We submit that the balance, as it stands in the draft legislation right now, is a little too punitive and a little less cooperative. You need to shift that balance.

Mr. Adams: The last thing I'll say is that I suspect our committee supports your industry. We certainly get a phenomenal amount of paper through here.

Thank you, Mr. Chair.

The Chairman: Anyone else? Mr. Knutson.

Mr. Knutson: I'll pick up this point. I apologize for coming late, but I had to go upstairs to get some documentation that I had from when we talked to the foresters in Vancouver. This is from a paper prepared by our researcher, who points out:

In Canada, a person can bring an action against someone he or she believes to be violating the [proposed] Act only after the minister has been requested to do an investigation and the request [is] either unreasonably refused (or there was no report within a reasonable time) or after the investigation was unreasonably suspended or unreasonably conducted. In the US, the Secretary must be pursuing a court action against the alleged offender (or being given 60 days to commence one) for the citizen suit to be prohibited.

And that's just one example of the differences between the U.S. experience and the Canadian experience.

It's not in here, but I'll point out that the language we're using is similar to the language used in the provinces, where there is not one piece of evidence that suggests citizens can access the court with a frivolous case. When we look at jurisdictions, we can debate the spotted owl and its impact on the Pacific northwest, if you want. Our point, however, is that it's not relevant here. Look at the jurisdictions that have similar language and you will not find a frivolous case. How do I know you won't find a frivolous case? Because you won't find any case, and that suggests to me that it's a pretty high barrier.

Ms Andrea Moen (Legal Counsel, Alberta Forest Products Association): If I might respond to that, I should tell you first that I'm a lawyer who practices in the area of environmental and forestry law. I have done so in Alberta for fifteen years. I have been involved in a number of cases on the side of the Alberta government and sometimes industry. In those cases, environmental groups have used legislation not nearly as easy to get through as this to bring actions before courts to challenge government decisions that have a direct impact on industry. That is a method that is accepted in Canada and that can be used for this bill. There is nothing in here that prohibits anyone from challenging ministerial decisions. I think there is a clause in this bill that provides for the citizen to take an action if they're not happy with the minister, and the minister's action is one small hurdle.

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The Chairman: Do you want more litigation?

Ms Moen: As a matter of fact, Mr. Chairman, from a lawyer's perspective this bill is a wonderful bill. There's going to be a lot -

The Chairman: What you're proposing would lead to more litigation. What you're proposing is to challenge the minister's decision.

Ms Moen: What I'm saying, sir, is that the minister's decision can be challenged through judicial review with this legislation the way it stands right now. What is being put in its place apparently is a civil cause of action.

I did want to comment, because I heard your comments earlier, about the safeguard...the test of the minister being reasonable. If in fact that were a judicial review - in other words, it were something the citizen had to go over; in other words, the citizen had to go to court with an application for judicial review to have the minister's decision reviewed for whether or not it was reasonable and then he or she went to court - that would give some small measure of comfort. But the way it is right now - and I want to echo what Mr. Schultz said earlier, and it's my experience in the courts already - the whole case will have to be put before the courts before a judge will make a decision on whether or not the minister acted reasonably.

Mr. Knutson: Let me talk to you about your experience, then. How many times have you in your experience found the courts to interfere and find that a minister has acted unreasonably -

Ms Moen: That is not the point.

Mr. Knutson: - and awarded costs against the government?

Ms Moen: About going against the government, it is my experience that has happened in one case I was involved in.

Mr. Knutson: Let me jump in. We understand if somebody brings a court action and they try to make the case that the minister has acted unreasonably and they lose - the environmental group, the individual citizen, or whoever - they pay court costs.

Ms Moen: That's not what this says.

Mr. Knutson: No, but in Canada they pay court costs. Losers pay court costs.

Ms Moen: I disagree with you. I've done a great deal of legal research in this area. Losers do not always pay court costs. There is a principle that the courts turn to in situations where it is a public interest group to say a public interest group ought to be able to go before the courts without having costs awarded against them. That is not something that has been finally decided by the courts in Canada, and this bill does not state clearly that costs will be awarded against them. It provides for the awarding of costs.

Mr. Knutson: Just so I understand, you're saying in a general sense if someone brings a frivolous or vexatious or unreasonable case in Canadian courts, they don't pay court costs.

Ms Moen: There have been such cases where the public interest group -

Mr. Knutson: I mean generally.

Ms Moen: Generally, public interest groups have not paid court costs. I was involved in one of the few cases in Canada where costs were awarded against them. It was a long, expensive case. That case got started by the public interest group being able to put before the court what turned out to be a specious affidavit stating certain things concerned with biology that ultimately we were able to show were not true. It cost a lot of money. It was a waste of resources. Those resources should have gone to the real issue in that case, which was sustainable forestry.

Mr. Knutson: I go back to my original point. The language exists in other legislation, in other jurisdictions, and there is no flood of citizens' actions.

Ms Moen: That's not the way we look at it in Alberta. I'm sorry, there have already been a lot of actions in Alberta, using existing legislation, without having -

Mr. Knutson: With this language?

Ms Moen: No. This is even easier for those groups to get through.

We already have at law the right for judicial review of ministers' decisions. We have at law the right for citizens to be able to lay private prosecutions, to swear information. We have ways private citizens can handle things. We do not need to import the right to turn around and sue an alleged offender.

It has already been alluded to, but I want to emphasize that the minister takes the same body of evidence and decides not to pursue an offence because he has to meet the test of ``beyond a reasonable doubt''. However, the private citizen, on the other hand, when he takes the same body of evidence, only has to prove it on a balance of probabilities. If you go ahead, at least make the onus the same for the private citizen.

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Mr. Forseth: It will be interesting to hear the opinion of the departmental drafters of the legislation on clause 60. They are saying civil suits can be initiated only after the responsible minister has had an opportunity to investigate the allegations. It's explained that it was the view of the drafters that this clause gives the public the right to sue but prevents the courts from becoming overburdened with lengthy civil suits. That's what they're saying.

They cite subsection 84(1) of the Ontario Environmental Bill of Rights, which allows individuals to initiate private actions, and it looks as if that's where they are taking their direction from. It outlines a number of instances here about the minister and so on. But you clearly have a different opinion from the government lawyers' about the meaning or implications of clause 60.

Ms Moen: The reason why I'm particularly concerned is that I was involved in the first cases that interpreted what the environmental review process guidelines were. The Department of Justice lawyers, I know, because I discussed it with them ahead of time, assured us that was not a statute, or it didn't have regulatory status before the courts, and that is not what the Supreme Court of Canada ultimately said.

Mr. Forseth: Which statute are you referring to?

Ms Moen: This is the environmental review process guidelines order, which is now the Canadian Environmental Assessment Act. That was just an order, and the Department of Justice.... When I read it, I could see where they were coming from. But I'm looking at this with fresh eyes, as a lawyer for government and industry who has had to be in a position of defending what other people said was clear language when it simply wasn't.

The Chairman: All right. Thank you.

All I can add to this discussion is that when it comes to frivolous actions, the experience we have had under CEPA, the Canadian environmental protection legislation that came into force in 1988, has been that over the last eight years it has led to two actions of the nature envisaged in the bill here. Therefore, citizens' actions...in Canada, at least so far, it hasn't seemed to lead to frivolous initiatives at all, if we can draw a conclusion from CEPA, and CEPA, because of its chemical orientation and its use, lends itself to action by both the urban and the rural population. Of course, we will look at it again very thoroughly to make sure that what is proposed here will not lend itself to an easier approach than under CEPA.

Secondly, you may have a higher incidence in Alberta, but by and large across the country I hope you will agree that Canada is a much less litigious society than the United States. Therefore, constantly to draw comparisons from the United States is disregarding a different system, a different attitude, a different culture, and so on.

As for the substance of what you have proposed to us today, in a cursory manner I went over the proposals and the proposed amendments in the submission by the petroleum producers. Some of them are very practical and they open up new territory, so we can certainly give assurance that we will examine them thoroughly one by one, no doubt.

As for the proposals made by the four associations, including the National Agriculture Environment Committee - I'm referring to this paper - I will certainly look with great interest at the redefinition of ``residence'', which seems to be stronger than what the bill proposes at the present time.

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Finally, may I say about the most excellent report by the forest products people that on page i, when you speak about preventative action, I certainly agree with you on the necessity of reinforcing preventative action, but you say that:

Bill C-65 does not recognize initiatives aimed at species conservation and does little to enable the development of similar initiatives in the future.

That, I would like to say, is not really the role of legislation. You don't need legislation to do that. You can do that through programs. You can do that through non-legislative initiatives. That is not the purpose of the legislation.

On page ii, the obsession with the American model comes up again, and we want to make sure that this is not going to be the case, for the reasons that we mentioned earlier.

I don't agree with you when you say that ``this act could and likely will lead to extensive and costly litigation''. I don't think so. Conceptually, that implies that the members of your association are not inclined - which I can't believe - to reinforce any initiative that has to do with the protection of wildlife. They are Canadians and they are part of the 83% of people who have been polled and who - as reported in yesterday's survey in The Globe and Mail - want strong protection of wildlife.

I don't think the corporate sector or the unions or other sectors in society will want to engage in litigation. If anything, they will want to make sure that the overall goal is achieved.

Also, we want to make sure that the legislation is good, because otherwise it will not be respected. This is the basic rule for any legislation, no matter what it covers. That is a democratic principle.

For the life of me, I cannot see your associations or the various members of private enterprise that you represent entering into litigation to fight wildlife measures.

On the contrary, if the legislation is reasonable, and I think it will be, and if the legislation is balanced, and I think it will be, there will be strong popular support. You will want to have the public on your side as well for the sake of good public relations, to which you are constantly and understandably so very sensitive to.

I don't see conflict here and I don't see trouble. On the contrary, some fear-mongering is taking place, as we mentioned to the group preceding you. It happens with every piece of legislation, believe me. When we went through NAFTA, at the time, my God, the predictions were that Canada would collapse the next day. You may remember that. When we had tax reform in the 1970s under Benson, my God, there were people coming to us asking if they would lose their jewellery because Mr. Benson was going to do certain things with the new legislation.

Every legislation is the source of fears, and of course it is our task to allay them. It is also our task, of course, to listen to you and to make sure that whatever can be adopted in your proposal will be adopted. We can certainly give you assurances today that we will look very seriously at your proposals.

Mr. Adams: Mr. Chair, I must have missed the recommendations in the two briefs we heard and we've had discussion on. Could we just clarify what this document is? Perhaps you did clarify it, but I'm sorry, I missed it.

Mr. McManus: Yes, I can speak to that.

This document is a series of recommendations that have been previously submitted to the committee. We resubmitted them today.

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The Canadian Association of Petroleum Producers was one of the four organizations that participated in the initial task force organized by then Minister Copps to develop principles for a framework upon which the legislation was to be based. There are some inconsistencies in the legislation as it's currently drafted versus the consensus agreement reached by all of the parties, which included environmental organizations and industry associations. Those inconsistencies are, in some cases, identified here with recommendations for changes.

Mr. Adams: Thank you, Mr. Chair.

The Chairman: Thank you.

It has been a long day. We started here at 8:30 a.m. We'll be here again tomorrow morning. I'll be glad to see you again. In the meantime, we thank you for your input, your patience, and your good advice.

This meeting is adjourned until tomorrow morning.

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