EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 19, 1996

.0844

[English]

The Chairman: Bonjour. Good morning.

[Translation]

Ladies and gentlemen, this meeting is called to order. Pursuant to Standing Order 108(2), we will be examining the issue of endangered species.

[English]

Needless to say, this is a subject that, judging from the number of people in this room this morning, is of great concern to you. Pleased be assured that you are not alone. It is also of great concern to us around this table and to many of our colleagues in the House of Commons and hopefully also in the Senate.

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We are glad to have the opportunity of starting with you this morning. By that I mean the Canadian Wildlife Federation, the Sierra Legal Defence Fund, and the Canadian Nature Federation. We have a good two hours to exchange views, seek clarifications, and hear your advice. I would like one of you, whoever it is to be, to introduce herself or himself and then introduce the others.

Let's get the show on the road, as they say.

Ms Sandy Baumgartner (Manager of Programs and Communications, Canadian Wildlife Federation): I'm Sandy Baumgartner, and I'm with the Canadian Wildlife Federation. I'll leave it to my colleagues here to introduce themselves as they are ready to go. Many of you know Stewart and Julie from previous opportunities.

The organization I represent is the Canadian Wildlife Federation. In the packages that are here there is some background information about our organization. As well, the brief that is included in the packages outlines in very brief form some of the activities that the Canadian Wildlife Federation has been involved in with regard to endangered species. I think it is important to set that stage, because it's an issue and a program area that we've been involved in since we were formed back in the early 1960s. It's something we will continue to be involved in and work on into the future, leading up to this legislation and beyond. I thought it would be important to outline our role.

My brief does not go into the extent of the nature of the problem. I think Julie and Stewart intend to address that. We are all here, as we all know, because this is a serious problem in Canada and it's important that we deal with it.

I'm going to get right into discussing the bill and some of the problems we see revolving around it. You should note that in the brief any area I have not included for discussion or comment does not mean necessarily that it's an area we support or don't support. There are a lot of areas that we also find need further discussion, but we tried to stick to a few key areas.

One of the things I'll start off with is a discussion about the national task force, of which I was a member. The task force, as you all know, was put together by the previous Minister of the Environment, Sheila Copps, to discuss the potential endangered species legislation in Canada. We had two reports, the second of which, it is my understanding, forms the basis of the development of this act. I would like to make a brief comment on that, because it concerns me.

First of all, it concerns me because the task force did come together as a group from business, industry, conservation organizations, environmental groups and the agricultural community, and it built a consensus around a document. But we built a complete document, not an à la carte menu for pulling off little bits of pieces to pull into the legislation. What's concerning our organization is that perception of how the legislation was built on the recommendations of the task force. I'm concerned about what was added on top of the recommendations and, more importantly, about the part of the task force report that was not included in the legislation.

When you hear people talking about the task force report and those recommendations, I urge you, first of all, to be cautious and make sure you compare the two documents.

It is also important to note that while the two groups represented on the task force, industry and environment, did build a consensus, you'll find there will be areas that some groups feel more strongly about than others. You'll probably see that reflected in the various presentations by the task force members.

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One area of the task force report that I'd like to draw your attention to is an area that wasn't discussed, a small section tucked away at the back of the document that talked about supporting elements of legislation. We felt as a group that there are a lot of elements in legislation that are extremely important, tools outside of legislation that should be included either within the legislation itself, in the national accord signed by provinces and territories, or through other programs and policies that government puts together.

Those aspects of the final task force recommendations do not appear, and they're important things. They address three topics. One is education and awareness. The second is incentives and compensation. The third is funding. Those are three elements that are really lacking in this piece of legislation. I think we need to go back and find ways of integrating those types of recommendations into the document and also discussing them further.

You'll find in my brief that I make a recommendation, and possibly a recommendation to your committee, Mr. Caccia, that a forum needs to be developed where we can look at our past experiences, our past successes, our past failures, learn from what we've done right and wrong, and build these elements around legislation. Those elements aren't there, so my fear is that the legislation will crumble because we don't have the supporting things around it.

The Chairman: You'll have to be a bit more specific in telling us how that can be done to enable the committee to understand.

Ms Baumgartner: Yes, sir. I'll do that as I go through the brief and I'll do it beyond as well. There are other types of program areas that I'll get into as we go through.

In Canada, as some of you may be aware from your previous briefings, there are processes going on right now to deal with endangered species protection. Those are COSEWIC and RENEW. COSEWIC is the Committee on the Status of Endangered Wildlife in Canada, which currently lists species in the various categories of risk. The other is RENEW, which is a body put together to develop recovery plans for those species.

I recognize that part of the problem and the reason why we're here today to look at legislation is that these processes were not effective. Species were still getting listed. Species were still reaching extinction. We identified many problem areas with these systems, some of them being lack of funding, lack of resources towards these programs, lack of political will to actually implement endangered species programs. All of these things are identified in my brief, and I don't believe the bill adequately addresses these problems. We're not looking at where the problems are; we're trying to implement a solution without adequately looking at the problems.

As we review this and as we look at the legislation and go further, we need to make sure those problems are addressed. We can introduce legislation, but if we don't have the people and the resources in place to actually implement the legislation, it's not going to be an effective tool for protecting species.

The national accord was a document signed by the federal, provincial and territorial governments to work cooperatively towards endangered species protection. It's important that this document and this concept of cooperation at all levels of government be incorporated into the legislative document, the reason being that no level of government can protect species alone. As we know, species don't recognize political boundaries, so they're going to travel back and forth. We're going to need to work together to try to find proactive solutions to those problems.

So the national accord becomes a very important document. It's a very short agreement in principle, so there are a lot of things that aren't there and a lot of things that probably concern various individuals who will be appearing before you. But it's important that the principle and the spirit of cooperation are maintained and implemented in the bill. I actually make a recommendation that the national accord be referred to specifically in the legislation to ensure that the spirit of that cooperation is incorporated into the philosophy of the bill.

Now I'm going to get into specific comments about the bill. I make some very general -

The Chairman: How would you propose to incorporate the spirit? Would you do it by way of a preamble?

Ms Baumgartner: I suggested either that in the administration section of the bill there be some wording similar to or adapted from what's currently in the Canada Wildlife Act, which actually sets out words such as that the minister may undertake, promote and recommend measures for the encouragement of -

The Chairman: Yes, but the Canada Wildlife Act is not before this committee.

Ms Baumgartner: No, I'm just suggesting some wording used in there that sets out provisions for cooperation with the public, with landowners, with the provinces and that sort of thing. It is wording reflecting that type...saying specifically that we will...and ideally referring to the national accord and the principles set out in it. It would actually make reference to that document and the elements in there that are reflective in the preamble, goals and objectives. Does that answer your question?

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Okay. Specifically on the bill itself I have some general comments. I must apologize in one sense that I'm not going to set a very good tone for the day and for your discussions on this legislation.

I think our goals are good and our reasons for wanting to look at this legislation are good, but there are a lot of things on which we need to go further. We need to look much deeper at the problems facing wildlife today and try to break down some of the barriers.

My first comment relates very specifically to the purpose of the bill. I think the bill is too narrow in its focus, and it's stated right from the very start, within the purpose. I know this may be an idealistic view, but I think we really need, as a society, as a government, as NGOs, to refocus our thinking on endangered species conservation, move away from the intensive-care-ward style of management and protection, and address the concerns of biodiversity and ecosystem protection. By doing this, by looking at wildlife management and conservation in a more holistic way, looking at the big picture as opposed to a species-by-species basis, which has proven not to be effective...

The purpose of this bill is narrow in that it does that exactly. It keeps us looking at endangered species protection on a species-by-species basis. We need to be proactive, we need to take a multi-species approach, and we need to take an ecosystem approach, looking at the big picture and putting in mechanisms.

It's not easy and I can't come here and pretend to have all the answers, but there is an example I'd like to give you. In the packages I circulated, I included an education program that we produce each year for schoolchildren. We deliver it to schools each year during National Wildlife Week, which is in April and which this government supports. In 1996 the focus of our package was on ecosystems, the importance of ecosystems, and the importance of protecting ecosystems.

So we're telling our schoolchildren to protect ecosystems and we're telling them to look at ecosystems and look at the big picture, but we're not doing it ourselves. Through our actions we're not practising what we're preaching to the schoolchildren, to the future of this country. If I can deliver any message today, that's it. It's a disappointment that we're not demonstrating to the future caretakers of this earth, through our actions, what we're preaching. Just through the very nature of the purpose, we need to refocus and expand.

Mr. Adams (Peterborough): Are you proposing that we withdraw the legislation?

Ms Baumgartner: No, I'm not proposing that.

Mr. Adams: I was reading the conclusion of your report, and it says you're extremely disappointed with it and so on. You recognize that the majority of species live on privately owned land, which is blatantly untrue. It can't be true.

Mr. Taylor (The Battlefords - Meadow Lake): Are we asking questions now?

Mr. Adams: Feel free, Mr. Taylor.

I mean, are you proposing that we withdraw it?

Ms Baumgartner: No, I'm not proposing that we withdraw it. I think we can expand it and improve on it.

Mr. Taylor: Listen to what she has to say.

Mr. Adams: I read the report. Did you read it? Have you read this?

Mr. Taylor: I was listening to it.

The Chairman: All right. We will proceed.

Ms Baumgartner: I will say that my brief is not a very optimistic document, and yes, I am extremely disappointed in the proposed legislation. Nowhere in my brief and nowhere in my presentation will I say to withdraw the legislation, but I think there need to be some wholesale changes. We need to refocus on how we look at endangered species. I think we can build on it with what we have. I'd hate to start over again from square one, because this has been a long process. Many of my colleagues from the task force sitting behind me would probably throw things at me if I said to start from square one.

Anyway, I think we need to take a more holistic approach. Upon reflection, the reason for this is that possibly when we started this process, we had a predetermined goal. Our predetermined goal as a task force was that we were going to look at federal legislation. I'm not saying that legislation is wrong or not necessary. It's important, but it's only one of the tools in the toolbox. We forgot to look at the rest of the toolboxes, and in so doing, our goal was too narrow. We didn't set out the broader objectives.

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In my brief, I set out the objectives of the Australian endangered species legislation. Their first goal is to protect species from extinction and to recover them to a viable population. But they go further than that, and they actually set out some objectives that include dealing with landowner problems, looking at preventive management, and putting in mechanisms that will deal with conservation of endangered and vulnerable species in a much more holistic way, on an ecological basis.

They have provided for dealing with threatening processes and for looking specifically at the problems, and they've encouraged cooperative management among various populations of the country with all levels of the state and with individuals and landowners. They're taking a much broader perspective. And in their legislation, they've set out some elements that go beyond just listing species and prohibiting activity on critical habitat.

In my general comments, I then go on to talk about the tone of this legislation. Upon reading the legislation I was concerned, because the tone says to landowners and to individuals that we're not doing a good enough job so we're going to set out some processes to deal with this job, yet we're not going to trust those processes.

As I reflect on it, I'll give you my way of looking at it. We're going to list the species with this scientific committee, but we're not going to trust that scientific committee because we're ultimately going to let the minister and his cabinet colleagues make the final decision.

But we go further than that. In case we don't like a decision, we're going to put in a mechanism to allow us to further revisit that decision. Ultimately those decisions are going to land in the courts. That's what concerns the Canadian Wildlife Federation.

I think that practical management and prevention of species extinction will not happen in the courts. It has to happen on the ground. I think we're really missing the opportunity to put those types of things in this legislation, and it's reflected through the tone of the bill.

I think I can safely say that I'm not speaking just for myself. When I read this, I thought, I'll go out tomorrow and hire an environmental lawyer, because that's what we'll be doing; we'll be dealing with applications for review and ultimately we'll be dealing with the courts to address the shortcomings within the act.

The example I gave at the start concerns some of the definitions. I didn't look specifically at all of the definitions in that section, but overall I found a lot of them vague and unclear. Ultimately, somewhere along the line, these definitions will have to be clarified.

I'd rather have them clarified upfront at the beginning of the process so that we're all clear about what species we're talking about, about what exactly we mean by habitat and critical habitat, about the implications of harming species when they're endangered, and about when they're living on private lands, provincial lands or federal lands. I think it needs to be clarified right upfront so that somewhere down the road we won't have to deal with a court of law to figure out what exactly we're talking about in the legislation.

In the interpretation section of my brief, I do give examples of some of the definitions that have shortcomings. There are others, and I think they'll probably be addressed by others in their presentations today, but I mention a few.

For example, with respect to the definition of critical habitat, we use habitat to define critical habitat, but nowhere in the bill have we defined habitat. As we all know, and as you're going to hear repeatedly throughout the next few weeks, loss of habitat is the most serious problem facing wildlife today. If we're not even going to define what that really means, how can we address that problem? If we're not sure what habitat means and what critical habitat means to endangered species, I don't think we're able to even address the problem.

We need to define those things. I've offered a few suggestions from other pieces of legislation for a definition of habitat. I've also referred back to the task force report on defining critical habitat. Again, I think we need to be clear on what we mean by critical habitat.

Moving on to the application of the act, I find that we're into the numbers game again. Clause 3 sets out how we're going to deal with protecting species in the north. And I'm not sure that we really intend to do that, because we set out an exemption process for wildlife management in the north for some species. And I question whether or not the exemptions that are set out in subclause 3(3) will actually be done on species-by-species basis or whether they'll be done on all endangered species in the north.

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These are questions I'm not sure I can answer or that you can answer here, but they're certainly questions that are asked of me by people living in the north. I'm not saying that actually including the territories is necessarily right or wrong, but I am suggesting that we talk to the people in the north, to the wildlife management boards, and to the people that this is going to be affecting the most. I don't think the decision to include the territories within the scope of this legislation was done in an effective manner.

I think that once people in the north have had a chance to speak, they might have some views to offer on this. I will not be making a specific recommendation other than this one: speak to the people living in the north who are most affected and listen to the wildlife management boards about how they want to fit into this structure.

After this, I moved on to what I feel is probably the most significant part of this piece of legislation. It's probably the shortest clause in the whole bill. It's about conservation agreements. Mr. Caccia, you asked me earlier to lay out some examples of how we can be more proactive in this, and I think this is the clause where we can do it.

Unfortunately, it's a small paragraph and it's an optional paragraph. It starts out by saying that a responsible minister may enter into an agreement, so that says to me that it's an option, that we may use conservation agreements; but if we look at what's going on in the United States and Australia, where the most effective species protection and recovery plans are going on - in my view - they are being done through more comprehensive agreements with industry, with landowners and with state governments. They're looking at it on a much broader basis.

For example, in Australia, since their act was implemented in 1992, they've begun developing what they're calling ``action plans'', where they're developing plans of species management and ecosystem management on a much more comprehensive basis. They're looking at groups of species as opposed to looking at one species at a time.

Similarly, as the U.S. has amended their legislation over time, they've introduced what they call ``habitat conservation planning'', where the U.S. Fish and Wildlife Service will develop land use or habitat management plans with industry and with landowners. And as we look at the debate going on in the U.S. for re-authorization of their act, that's exactly what groups and individuals in the States are moving towards. They're looking at habitat conservation planning as a way to mitigate the conflicts between private landowners and endangered species, and I think it's an effective tool that we should be looking at very closely.

So my recommendation to you is to include conservation agreements, not as an optional part of this legislation but as a mandatory area in which you look specifically at how you can work with landowners and with industry in building land management and conservation habitat plans.

I think that through this clause we can look at some of the shortcomings I've identified. We can look at multi-species protection and we can look at mitigating landowner concerns. We can deal with ecosystem problems in a much broader sense and we can truly help wildlife in this country.

When I speak about the examples in the U.S., I see the consensus they're building. We talked about a consensus here through the task force. I see the consensus they're building. And in my brief, I refer to some recommendations that our counterpart in the United States, the National Wildlife Federation, has made about improving the Endangered Species Act in the U.S. I lay them out here in my brief.

They're encouraging increased use of regional habitat conservation plans. They're encouraging the setting up of conservation easement programs. They're trying to look at ways of reducing the impact on private landowners by involving them in the process and by setting up processes in which landowners will receive information on a timely basis and in which they can call and get help, and those sorts of things.

I think that if there is anywhere in this legislation I would look for a place to improve and build on, it would be this clause. So when I say that I won't throw the legislation out, it's because I think if we build on this clause we can go a long way towards improving it.

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My other comments relate to the other processes. The COSEWIC process and the recovery process are the two remaining areas that I'd like to deal with very briefly. I refer to COSEWIC and want to speak about it because it's a body that was established in Canada almost twenty years ago to actually look at species and list them. So this has been going on. We actually have species that are listed in Canada as endangered, threatened or vulnerable.

I think this process is a good process. It's a process that involves several levels of government and the NGO community. We've been working together in a voluntary, albeit informal, and effective fashion. If you're looking at a model for intergovernmental cooperation, I'd look to this body. It works, it has been effective; don't tinker with it.

For the most part it has established mechanisms to look at listing species on a scientific basis. I think it's important that we leave that body dealing with species listings on that scientific basis. What concerns me most in this legislation is that we've set out mechanisms to question those decisions. We've set out a mechanism whereby, if a recommendation is given by COSEWIC for a listing, it ultimately goes to the minister and to his cabinet colleagues to make a final decision on where that species should be listed. I think that's wrong. If COSEWIC comes up with a listing, they've done it for the right reasons; they've done it because the species is declining and needs protection. I don't think those decisions should go beyond that body. Furthermore, we should try to use their processes and follow their directions, as opposed to setting up mechanisms to question their decisions.

The Chairman: Please conclude now, because you're cutting into the time of your colleagues.

Ms Baumgartner: Okay, sorry.

Finally, I will very briefly touch on the recovery process. The mechanisms are set out for the recovery process. There are two things that I'd like to comment on in terms of the recovery process. I think it's important to make it mandatory to include as many people as want to be involved in the recovery process, such as landowners, conservation groups, etc. There are a lot of people out there on the ground who can actually do the work in the end, so it's important to be inclusive.

One final area I would like to point to, because it was set out - I'm not sure why it was set out - was the clause that was established under the emergency orders section. If the minister feels there is a situation where the recovery plan needs to be amended, he or she could do so through an emergency order. This was not quite the way the task force envisioned it.

We want to be able to amend and adapt recovery plans as we move along, but we don't want to do it through an emergency order. I think that is entirely going against the principles of recovery process. Recovery plans need to be dynamic documents, and we need to be changing and looking at new ways of doing things throughout the process, but we also need to be doing it in a flexible way.

So I'll conclude just by saying that yes, I am disappointed in the legislation as it stands, and you'll see that my brief reflects that. But I think we can improve it and build on it. I think we can build a mechanism to truly look at endangered species conservation in this country and really do a good job, but it's important that we do it together, that we do it together with the provinces, and that we do it together with private landowners and industry. At this point in time, I don't think this legislation is going far enough to do that.

Thank you.

The Chairman: Thank you.

Who would like to speak next?

[Translation]

Ms Julie Gelfand (Executive Director, Canadian Nature Federation): Good morning. My name is Julie Gelfand and I am the Executive Director of the Canadian Nature Federation.

[English]

My name is Julie Gelfand, and I'm the executive director of the Canadian Nature Federation. With me is Stewart Elgie of the Sierra Legal Defence Fund.

[Translation]

We will be giving our presentation together.

[English]

We'll be doing our presentation together. We have a couple of audio-visual mechanisms, and we hope they work. We have overheads and a slide projector, and hopefully everything will fall into place.

With us today at our presentation are two guests who should help the committee if they have any questions. I have with me Stewart Hamill, who is a wildlife biologist and a private landowner. I understand from your previous committee meetings that you had some questions regarding the application of this law on private lands, so we thought it might be useful to have a private landowner come in to talk to you directly from that perspective.

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Also with me is Dr. Lenore Fahrig, who is an ecology professor at Carleton University. She will be here to help us answer any questions that are of a scientific nature. Stewart is obviously a lawyer, and I'm a generalist. We tried to get people who could cover the spectrum in terms of being able to answer all your questions.

I want to tell you that the Canadian Nature Federation was a founding member of COSEWIC. It also sits on RENEW with the Canadian Wildlife Federation and the World Wildlife Fund. As an organization, we have a lot of experience in the listing and helping to develop recovery plans, so we should be of some assistance to you.

Mr. Stewart Elgie (Staff Counsel, Sierra Legal Defence Fund): Good morning.

[Translation]

Since I do not speak French very well, I will be speaking in English today. I apologize for this.

[English]

First of all, I would like to thank the committee for inviting us to give our views on this bill. I'd like to particularly thank you for rethinking your original idea of having task force members appear six days after the bill. Given how long it has taken me to even digest this bill, that would have been above and beyond the call of what is humanly possible.

I'm a lawyer with the Sierra Legal Defence Fund. For those of you who don't know, Sierra Legal Defence Fund is a public interest, environmental law organization with offices in Toronto and Vancouver, and with staff lawyers and scientists.

I also wear a hat as a part-time academic, and under that hat have done a fair amount of research and writing on the subject of endangered species legislation. And my third hat, I guess, is like Sandy's. I was a member of the federal endangered species task force, and I'll say a little bit more about that role.

I've given the committee a summary of my brief. A more thorough brief will follow. For today, as Julie said, the way we're going to set it up is to share. She'll start by giving a background of the endangered species problem, and then we'll get into specific comments for the main part of our presentation. We've given you a flip chart that has the overheads we're going to use on it, and it may be useful for committee members to follow along on those as we're speaking.

Ms Gelfand: The flip chart starts off with something that's called ``The Problem'', which is our first overhead.

[Translation]

Throughout the world, two or three species are disappearing every hour, and scientists believe that within 30 years we may well lose up to 20% of all our species.

In Canada, we have already lost 21 species and 275 other species are on the endangered species list. This list grows longer every year.

[English]

There is obviously a problem with endangered species. Why are species going extinct? The main reason for 99% of modern species extinction is human activity. Some of the species that we're talking about when we talk about Canadian endangered species include things like the polar bear. The beluga whale is on the endangered species list, as is the sea otter, which has been recently downlisted - that's actually a piece of good news.

Mr. Anawak (Nunatsiaq): The beluga whale is not an endangered species. That's only in the St. Lawrence, isn't it?

Ms Gelfand: That's right, it's only the St. Lawrence island population. You're correct, but in COSEWIC we are able to designate certain populations. The population that lives in the Hudson Bay area is not under threat.

As I said earlier, we've lost twenty different species, including the Labrador duck, the great auk and the passenger pigeon. Eleven species are extirpated, which means they no longer exist in Canada but they do exist in other countries - things like the black-footed ferret, the grey-eared prairie chicken and the pygmy short-horned lizard.

Why are species going extinct? The main reason is due to habitat loss, as Sandy said. At least 80% of species extinction is due to habitat loss, and the main reason for habitat loss for endangered species, especially in Canada, would be agricultural expansion, deforestation, i.e. logging, and urban expansion and industrial expansion. So basically, there are many people. We have a lot of activities, we build cities, we need food, and this has an impact on endangered species.

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Every hour, about 240 acres of habitat are lost in Canada. Why is this important? As an ecologist would tell you, everything is basically linked to everything else. We often call it the ``web of life'' or the ``chain link fence''. Each time we lose a species, we lose a piece of that web or we lose one of the links on the chain fence. We do know that at some point, when we lose enough pieces of the web or enough links of the fence, we're going to actually have the fence or the web collapse, but we don't know what that point is.

Quickly, we need wild species for the following reasons: for food, for shelter, for medicines, for pleasure, for heating. They're part of our national identity. We use them for medicines - aspirin has come from species - and we need them for pleasurable reasons.

We basically need to have a law in Canada to protect endangered species. In 1992, Canada passed or signed the biodiversity convention, which stated that each nation shall:

Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations;

So the Government of Canada has committed itself under the biodiversity convention.

Mr. Elgie: Thanks. Now it's my turn.

Canada was, in fact, the first western nation to sign the biodiversity convention. In doing so, we received international acclaim for the role we played at the time. Since signing that act, Australia, Japan and other developed nations had gone forward with their own endangered species legislation. Our southern neighbour, the U.S., has had one in place since 1973. So a Canadian endangered species act is long overdue and is badly needed.

At the moment, we have in Canada general legislation governing species on federal lands, migratory birds and fish, but there is no legislation giving the additional protection that endangered species need. Of the twelve provinces and territories, four currently have specific endangered species legislation - New Brunswick, Quebec, Ontario and Manitoba - and those laws are a good start in the parts of Canada where they exist. In addition, about a month ago the federal government and six provinces negotiated and have now signed a national accord for endangered species protection. That accord includes certain minimum elements that should appear in endangered species legislation in each of the signatory jurisdictions - and I would emphasize that it's a very short, bottom-line document.

This is an important step, and we really encourage and support the provinces and federal government for trying to develop this plan. But I would add that a non-binding political accord that does not have any deadlines will not protect endangered species by itself. What's important is that the accord is implemented and that the governments live up to and in fact exceed their obligations. The federal government ought to take a leadership role in encouraging others by leading by example.

Sandy told you a little bit about the task force process. For those of you who are interested, these are...I guess we'll call them the surviving members of the endangered species task force. In our fourteen months of existence there was some turnover. There are no deaths to report, but a couple of people dropped out. As you can see, it represents a broad spectrum of industry, land use, environmental and wildlife organizations. Quite frankly, we began with very disparate views on a number of the issues. Speaking personally, I think it was a surprise to many of us that we actually reached an area of agreement on virtually all aspects of federal endangered species legislation by the end of fourteen months.

I won't go through this in detail, but what I've done is put up some of the main elements that were included in the task force report. You should really read the whole report at some time. It's not scintillating reading, but it will provide an interesting checklist to which the bill can be compared.

Some of the key points that we recommended were:

- that the act apply to the full extent of federal jurisdiction, including protecting species that cross international borders;

- that listing decisions should be made by COSEWIC on a scientific basis, not by politicians;

- that the act should automatically prohibit the killing or harming of a species or the disturbance of its home;

- that exception permits should be available for legitimate activities, provided reasonable mitigation measures are taken to avoid jeopardizing the species;

- that interim protection orders be required before COSEWIC makes an emergency listing;

- that regulatory measures to implement recovery plans include provisions for habitat conservation - and all members agreed on the goal that we should conserve enough habitat to allow for the survival of a species;

- that recovery plans should develop in consultation with affected communities and landowners, and that we should encourage and support their conservation efforts;

- and finally, that there be some form of advance review to make sure projects and activities will not adversely affect species, provided it doesn't duplicate existing processes.

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The task force process is, as I said, a model in some ways of having groups that usually are at opposite ends of the table sit down together to try to agree on a very major piece of federal legislation. It's a model I hope we'll follow in the future. I think it's very important to send a message that will encourage that to happen by having people see that those recommendations are indeed followed. Otherwise, people will be very reluctant to put that kind of time and energy into a process like this in the future.

I'll turn it over to Julie to start some of the specific comments on the bill.

Ms Gelfand: We're going to proceed by walking you through the bill a little bit the way it would be if you were an endangered species. How do you get listed? How does listing work? We're going to talk about what species can be protected. Once you're listed, can you actually be protected if you are an endangered species? If you are an endangered species that can be protected, what things will we do to protect you? What are the prohibitions? What can we not do to you if you are a listed species? We'll talk about habitat protection as it's described in the bill and what should happen, and then the development of recovery plans.

I'm going to start off with listing. This is a critical area. I think Sandy has already talked to you a little bit about it. CNF and CWF and the World Wildlife Fund have been on COSEWIC for over twenty years. The listing process that has happened over the last twenty years has been based on science, not on politics. The way this bill reads right now, COSEWIC would only advise on species that should be listed, and the government would then make a decision as to whether or not that species should be listed.

In our opinion, this is not correct and should be changed. If you want to have political balancing, which is what I think the government's trying to get at here, it should occur more in the decision of whether or not you protect a species, not whether or not you list it, because when you list a species it actually has a lot of other beneficial effects. It's used for educational purposes to tell the world that these species are in trouble, and it helps promote a lot of voluntary efforts by private landowners, private citizens, to help recover species even before anything happens in any act. That's what's been happening for the last twenty years through the recovery plan process.

In our opinion, the official list of species at risk should include all COSEWIC species. There should be no ministerial discretion at the time of listing.

As well, right now the bill indicates that COSEWIC should have nine different members instead of what now exists, about fifteen of us. In our opinion, the majority of these people should be non-government people. I personally have seen somebody from one provincial government try to get a species downlisted and look at another provincial representative and say, if you scratch my back, I'll scratch yours. If it weren't for public interest groups like the World Wildlife Fund or the Canadian Nature Federation stepping in and saying, excuse me, but the science on this species says it should be endangered, and we're not going to have any of this political bargaining, then that species would be down-listed.

So in our opinion, you either should have some public interest representation on COSEWIC or should ensure that the majority of COSEWIC members come from somewhere outside of government.

Mr. Elgie: Building on what Julie had said, I recognize that there's a concern in government. I think what's driving the idea of having a cabinet list is a concern that there should be some room for political balancing. We talked about this a lot on the task force. It was our feeling that if there is balancing to be done, it should be done at the protection stage. Political balancing shouldn't poison the creation of a list. The list must be credible. That's the whole foundation of the act. That's what the whole exemption permit process is for, to allow for political balancing at the protection stage.

I think it's important to put it on the record that from the perspective of Sierra Legal Defence Fund, we strongly support the introduction of this bill. We think it has an opportunity to make a lot of progress for endangered species. I know CNF would say the same thing.

I'm going to talk about some of my concerns, but let me also say that the bill has a number of positive elements. It's a step forward in some areas from the 1995 legislative proposal. However, there are several really critical areas where the bill is too weak. One is listing. The other couple, which we'll talk about now, concern where it hasn't lived up to the recommendations of the task force or even the national accord.

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Fixing some of these really weak areas will make a tremendous difference. It will make the difference between an act that doesn't do very much to advance us from where we are right now and one that will make a world of difference to endangered species across Canada. So please place the concerns I'm raising in this context. I think we have a bill close enough to being really good that it can be fixed through this process.

The second thing we should talk about after listing is what species are eligible for protection as opposed to what protection you get if you're eligible for protection. This could be called the eligibility list. What the bill says, and subclause 3(1) is the important part, is that the following species are eligible to be protected: those living on federal lands, aquatic species and their habitat, and migratory birds and their habitat if protected under the Migratory Birds Convention Act.

Let me touch on a few of those. Federal lands is obviously very important. The federal government must take authority over its own house. Federal legislation must apply in the north, because perhaps over 95% of the lands in the north are federally owned and the Territories, by their own admission, do not have authority to pass legislation regulating habitat activity in the north. The Yukon wildlife minister stood up in the legislature and said this himself about a month ago. There may at some point be devolution, but as of now the federal government must protect federal habitat in the north. It is their land.

I think everyone agrees on aquatic species and their habitat.

Migratory birds are something I think the committee should look at carefully. The way this clause is worded, it says birds and their habitat will only be protected if they're protected under the Migratory Birds Convention Act.

There are two significant points I'd draw to your attention here. First of all, only a certain number of migratory birds are listed under the MBCA. In 1916, the King of England and the U.S. President weren't particularly worried about raptors, hawks, eagles, owls and falcons. So migratory species like the peregrine falcon or the burrowing owl won't be counted as a migratory bird under this bill.

Secondly, the way this is worded, it is ambiguous whether the bill even allows protection for the habitat of migratory birds. They only get the habitat protection they get under the Migratory Birds Convention Act and it isn't clear that that act protects habitat. It does protect nests. It does regulate activities in areas where species live. But this is one area where I agree with Sandy. The way it's worded right now, it'll just be wide open to litigation to answer this question.

I encourage this committee to clarify that the bill will cover the habitat of migratory birds. There is no doubt migratory birds and their habitat are within federal jurisdiction. The Canadian Bar Association's national president has clearly said this in a letter to the Minister of Justice. As someone who taught constitutional law before switching hats, I can tell you there is simply no doubt on the issue. They can do it and indeed they must do it. The act will be of very little good to migratory birds if it doesn't protect the habitat they need to survive. This is the main threat. Most migratory birds in Canada aren't at risk because we're actually shooting them right now when they're endangered; they're at risk because we're destroying the places they need for critical habitat. This is one area in which the committee could make a real difference, and I encourage you to do so by clarifying this issue.

On cross-border species, the task force recommended the act apply to the full extent of federal jurisdiction. What the bill says is that the minister may pass regulations to protect animal species that cross national borders. This is clause 33. International cross-border species are not protected under this bill. There is an option to protect them in the future. I would add that this option is only to protect them against direct harm. The regulations are not allowed to deal with destruction of their habitat. Again, I would point out this is the main problem for any species, whether it is a cross-border species or not.

In the end, what the bill does is give the federal government the optional power to fire a blank. It can pass a regulation that doesn't deal with the real problem facing cross-border species.

I would encourage the committee to clarify this in two ways. One is to make it clear regulations protecting cross-border species are required. There is no doubt the federal government has the authority to deal with international environmental problems, including international endangered species problems. Indeed, the biodiversity convention requires us to do no less.

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The task force recommended that the bill protect cross-border species. Secondly, it should make it clear the regulations will address their habitat. Exemption permits are available. I would recommend there may be situations where there is equivalent legislation in a province and some sort of mechanism should be put in place to deal with this. Perhaps it could be like equivalency agreements under CEPA.

Another option, which is used in the Criminal Code under the cruelty to animals section, is to allow provinces to actually issue the exemption permits under this section. Provinces would decide in what cases activities can be exempt from this prohibition if they have their own legislation. There are ways to deal with this problem.

So I encourage the committee to clarify those two issues around the eligibility for protection.

An example Julie will talk about of a species that crosses borders is the grizzly bear. The average grizzly bear, which by the way is endangered in the northern U.S., could wake up in Montana, range into Alberta for breakfast, wander into Banff National Park by the end of the day, wake up, wander back into British Columbia, and the next day wander back into northern Idaho. This would happen all in the span of a few days. At the moment, when it wanders into Alberta and B.C. it can be legally shot even though it is listed as a vulnerable species. If it happens to make it into the national park it is okay for awhile, I suppose, if it avoids the Trans-Canada Highway.

This grizzly is a clear example of why only the federal government is in a position to provide protection for species that range beyond political borders. No province is in a position to protect cross-border species on its own.

Ms Gelfand: We wanted to give you some examples, as well, under the eligibility. In your package you'll see that Environment Canada produced a press kit and used a bunch of species in this kit. We wanted to talk to you about some of those species and whether or not they would actually be covered by this bill, because you'll find most species in Environment Canada's press kit are not covered by Bill C-65.

The swift fox, for example, crosses an international boundary. Protection is not mandatory. The minister may protect but doesn't have to protect. As Stewart has just said, there would be no habitat protection for this species. They also use the Vancouver Island marmot, which is located only on Vancouver Island, mostly on lands that are not federal. Therefore, it would not be covered at all by this bill.

The peregrine falcon is one of those migratory birds that Stewart indicated earlier is not covered by the Migratory Birds Convention Act. Therefore, it would not be covered by this bill. There would be no protection for the peregrine falcon unless the peregrine falcon was found to be on federal lands. It would have to be in a national park - or perhaps on Parliament Hill.

The burrowing owl is another migratory bird not covered by the Migratory Birds Convention Act. Therefore it is not covered by Bill C-65, again unless it is on federal lands. There are some individuals of this species in Grasslands National Park, but most of them are found on private lands in farmers fields.

The piping plover is an interesting one. The piping plover is a migratory bird that would be covered by the bill because it's covered under the Migratory Birds Convention Act. However, its habitat is questionable. Again, we want to stress this is a place where the committee could make a small change that would ensure the habitat of migratory birds could be protected. They also use another plant, which we don't have a slide of, called the western spiderwort. This is also not covered by the bill unless it is on federal lands.

We just wanted to go briefly through some of the species in the press kit. When we were at the press conference we found the minister was using these species and we were a bit concerned by the fact that most of these species wouldn't actually be covered.

I'd like to go on to a section on prohibitions. You can be listed and not be protected. But let's assume you're listed and then you are eligible for protection. What actually would happen to you? Right now in the bill you couldn't be harmed, you couldn't be killed, you couldn't be harassed. As well, we couldn't harm or destroy your residence.

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First of all, there are several problems with this section on prohibitions. We believe we should prohibit disturbance of individuals and their residences because human activity can disturb, for example, a caribou calving site or a bird nesting site. Right now that wouldn't be covered.

The endangered species acts of Manitoba and New Brunswick do prohibit disturbance of an endangered species, and the Migratory Birds Convention Act prohibits disturbing an egg or a nest, so we believe this bill should come up to the same level as those acts.

Another one of the most critical parts you could try to change is to expand the concept of residence. Right now, that's the only thing that could be protected in terms of not being harmed or destroyed. But what they're talking about in terms of residence is a den or a nest. As Stewart and I have talked about, it would be like saying I'm going to protect your home, but I'm actually only going to protect your bedroom because that's your nest and that's where you den. The rest of your house may not be protected, but where you sleep eight hours of the day will be protected.

We believe you should expand the concept of residence. We need to protect breeding grounds, we need to protect feeding grounds, and not just where a species dens or nests.

We also believe the prohibitions should apply to extirpated species. Right now those are not included. Extirpated means it doesn't exist in Canada, but it may exist in the United States, for example, so it could cross into Canada. Right now, the prohibitions do not apply to extirpated species. That is a small change that would be useful.

We also need to prohibit attempts to kill or harm. Again, in New Brunswick and Ontario attempts to kill or harm species are prohibited, and yet in Bill C-65 attempts to kill or harm are not included.

This is a more concrete reason why you have to expand the concept of residence. The Peary caribou doesn't have a residence per se. It migrates over thousands of acres in the north, so how would you protect its residence? You have to expand it to include critical breeding grounds and critical feeding grounds. Where do they calve? All of those areas must be protected in order to ensure the protection of this species.

Mr. Elgie: The next issue, and one I think the committee is well aware is a very important issue, is that of habitat protection. This bill must fix what's broken, and what's broken for endangered species is the issue of threats to their habitats.

If you look through COSEWIC's status reports, you'll see that in 80% of the cases the main threat to a species is habitat loss, and in virtually every case habitat loss is a threat to an endangered species.

I agree with Sandy that the bill should actually define habitat so we know what we're dealing with, and my brief contains a recommended definition that comes from the biodiversity convention. But more important than defining it, we must protect it, and this bill does not require protection of habitat.

Why don't we just go through what the bill does, first of all? This comes from clauses 38 to 42 of the bill. There's really a three-step process that this bill sets out to determine whether you'll get habitat. The beginning obviously is listing. Once you get through the listing and the eligibility filter, which gets you down to only about 30% or 40% of the species in Canada at that point, if recovery is found to be feasible then you'll get a recovery plan. The recovery plan will recommend measures that are needed to protect habitat. That will happen one year after listing.

In the next step, the minister must respond to the recovery plan to state what measures will be taken to implement it. That's another half year after the recovery plan.

The third step under section 42 is that the minister may pass regulations to implement measures in the recovery plan, but isn't required to do anything.

So the bottom line on this act is really three things. First of all, this three-step process is very complicated. It's riddled with possibilities for delay, and most important of all, it does not actually require protection of habitat, which is the single greatest problem facing endangered species.

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If you look at the provincial endangered species acts, all four of them on the books now in Canada automatically prohibit the destruction of endangered species' habitat. I've actually written out - and it's in your package there - the text just to give you a sense of what the provincial acts say.

New Brunswick's act says:

No person shall willfully or knowingly destroy, disturb or interfere with...critical habitat...

Quebec's act says:

No person may, in the habitat area of a threatened or vulnerable species, carry on an activity that may alter any biological, physical or chemical components peculiar to the habitat...

Ontario's act and Manitoba's act say something similar. All of them simply say you shall not disturb or interfere with critical habitat. All of them, except for Ontario, allow some kind of an exemption permit, however, in limited circumstances where you're taking reasonable mitigation activities.

It is not rocket science to figure out how to protect critical habitat. There are lots of models out there, and the federal act will be significantly weaker than all four provincial laws on the books in terms of how it deals with the most significant problem.

I would add that the federal Fisheries Act has something similar. It's in your package. It says: ``No person shall carry on any work...that results in the harmful alteration...of fish habitat.'' It's a simple prohibition. The irony of it is that a regular old fish gets stronger habitat protection under that act than an endangered fish gets under the endangered species act. It's better if you're not an endangered fish.

Finally, it is really significant that the federal government has said it's counting on the provinces to fulfil their part of the national accord, but it needs to fulfil its part. It has done that in a number of areas, but there is one critical area where it hasn't. The national accord says each government agrees to establish legislation that will provide protection for the habitat of threatened or endangered species. So the federal government has to live up to that critical commitment in the national accord. It must take a leadership role in the protection of habitat if it wants the provinces to do the same, and the four provinces with laws on the books currently do.

I encourage the committee to clarify that habitat protection will be required for endangered species under this bill. We agree, and the task force agreed, that some flexibility should be required and that flexibility can be achieved through clause 46, which allows for exemption permits or agreements in virtually any situation where activities may affect habitat.

There may be some concern expressed by some about the impacts of protecting habitat, and the proof is in the pudding, I say. Four provinces have had mandatory prohibitions on their books against destroying habitat anywhere in their provinces for as much as 24 years in Canada right now. It hasn't ground our economy to a halt. As far as I'm aware, it hasn't caused significant problems. It helps species.

Incidentally, I would add that it has never led to a single lawsuit. Even though Ontario and Quebec both allow citizens to bring private enforcement actions for violations of the act, there's never been a lawsuit about the enforcement of those mandatory habitat provisions.

So it has worked. It's a model that's been effective and should be adopted, I recommend, under this bill; otherwise, the proposed act will not be that effective in protecting endangered species because it won't deal with the main problem. It's that simple.

Just to give you an example of this, I'll just show you a couple of slides to make this real. The bill protects a residence. I'll give you an example of a species, a migratory bird called the marbled murrelet. We looked for its nest for over 15 years in Canada and never found one, because it nests only in the top of coastal old-growth trees 150 feet high, out on a mossy limb. The only way to find it is to peer up through trees in an old-growth forest at the first light of dawn, hope to see a silhouette of a bird, guess which limb it came from, shinny 200 feet up that tree and peer out looking for a tea-cup sized depression in the moss. This is exactly what a team of university researchers did for the whole summer of 1990, and by August the researchers found the first ever marbled murrelet nest in Canada.

I'm not even sure you can see it out there - just to see how hard it is to find. If you look at the bottom of the picture about one-third of the way up, right in the middle you'll see a little white indentation. That's some of the egg shells and dung from the bird. It's a little white blotch. That's the nest.

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So they found this thing and ended up finding a few more in the same area by the end of the summer. These was the first sighting ever of a nest. It was very exciting for everybody.

The problem was that B.C. doesn't have any endangered species law. This is a migratory bird anyway, and it's under federal jurisdiction. While the company was required not to cut the tree they found the nest in, and a few around it, they'd also seen dozens of these birds circling in the trees at dawn in the forests around there. They hadn't found their nests yet, and unfortunately they never did, because those forests were cut down. Whatever marbled murrelets were there no longer nest there.

Luckily, the upper part of the valley was made into a provincial park a few years later, and some nesting sites survived. But this emphasizes that just protecting the nests isn't going to save endangered species.

Ms Gelfand: We can't emphasize enough the importance of habitat protection. If this bill doesn't protect habitat for species it's not going to help protect the endangered species. If there's one thing you can change, that would be it, to make sure it protects habitat.

If you're listed and you're an eligible species and there've been some prohibitions, one thing that happens once you get listed is that we develop some recovery plans for you. This section of the bill is actually pretty good. In the CNF's brief we've tried to highlight the areas we think are good, because you can hear a lot of criticisms, but it's also nice to know what things are working well.

The bill is actually quite good on certain things. It's good on the content of recovery plans. It's excellent on the issue of timely production of recovery plans. If you're listed as endangered, a recovery plan has to be prepared in one year. That is excellent. If you're listed as threatened, a recovery plan has to be written within two years. That also is excellent, much better than we'd hoped for. There is not just creation of recovery plans for threatened or endangered; we also have to create management plans for vulnerable species.

Sandy mentioned a little bit about the concept of crisis management. It's a lot cheaper and a lot easier to deal with a species when it's at the vulnerable stage, when we still have an opportunity to make some changes in our practices. It costs a lot less to keep a species from going up the ladder of endangerment than it does to bring it back down. So if you can get it when it's vulnerable, create a management plan for it and start changing our habits, we can ensure that the species doesn't go up the ladder to endangerment.

It's via these recovery plans right now within Bill C-65 that we can address the threats to species habitats. That's where it is found right now. It's not really good enough there. Habitat protection should be much broader. However, the problem with it as it now stands is that recovery plans have no legal force.

So the only area where you can address habitat right now, as it currently exists in this bill, is in the recovery plan, but the recovery plan has no legal force and, more importantly, no obligation to implement the recovery plans. We have great timing here in terms of endangered species - one's in a year, and threatened in two years - but we could just have all those plans sitting there, with no obligation on the government or the interested parties to actually implement the recovery plan. We think that would be a very easy change for the committee to make.

There's also a question regarding feasibility of recovery or what we call the ``extinction clause''. The question of feasibility, is it feasible, is addressed in a recovery plan: how, what are the options, and what are the costs? The real filter, in our opinion, should be whether it is possible to recover the species.

If it's possible to recover the species it should automatically go into a recovery plan phase. We should have a recovery plan written. If it is impossible - as Stewart indicated, if there's one male left it's impossible to recover that species - you therefore do not create a recovery plan. But when you have it as feasible, you basically have an extinction clause within the bill. We think that would be unacceptable.

Mr. Elgie: Let me just add that the task force went through this debate. We ultimately picked the word ``possible''. Feasibility involves things like looking at what the recovery options are, what the costs and benefits of each one would be. By the time you've done that you've pretty much done a mini-recovery plan. So feasibility issues, balancing issues, should be done through the recovery process.

Let me add one more point. There is no power at the moment to actually pass regulations to implement management plans for vulnerable species. You can create the plans but you don't even have the power to implement them. That's a change that simply could and ought to be made.

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I won't spend time on these, but there are a number of other points you'll see in our briefs. Let me highlight what they are, just to flag them as some of the more significant issues.

First is the idea that emergency orders should be required where COSEWIC makes an emergency listing. This was recommended by the task force. Currently they are optional, under clause 34.

Second is the blanket exemption in the bill for all authorized activities dealing with national security or plant or animal health. There's no reason to give a blanket exemption from the prohibitions in the bill to activities for security or plant or animal health. These could simply go through the normal exemption process, and if there's a valid reason to let them go forward, it would allow them. The task force recommended that these exemptions should be allowed only in emergency situations, where there's no time to seek a permit. There may be cases like that. This clause is far too broad.

Third, the bill, I agree with Sandy, should be doing more to encourage species conservation efforts by landowners and users. If we don't have the voluntary support of landowners and land managers, we're never going to identify, let alone protect, endangered species. They need to be involved in recovery planning at an early stage. The bill should be encouraging conservation plans, in particular plans that cover more than one property, so there's more flexibility and more efficiency. We should be providing for things such as tax deductions and other incentives, which may have to occur outside this bill, to support private conservation efforts.

There should be a requirement for advance review.

What we've seen in the U.S. - and there are a lot of parts in the U.S. act we didn't try to copy. One area that has really worked well in the U.S. is their advance review process. Before you proceed with building a project that may affect an endangered species, there should be some sort of advance screening to look for alternatives or ways to minimize the impacts on that species. This is the key to a preventive appoach.

What they have found in the U.S. is that literally, if you look at the number of advance review projects referred, over 99.9% of the potential conflicts between development and species protection were resolved at the advance review stage and the project went forward, sometimes with minor modifications. So that is needed in the bill.

Finally, the citizen enforcement power is an important step forward. It fulfils a pre-election commitment made by the environment critic at the time, Paul Martin. Similar laws exist in four provinces. However, a number of significant obstacles must be removed, I say. The most significant is that at the moment, even if there is an immediate threat to the survival of a species, a citizen must apply for a government investigation and wait for the results of that investigation before asking the court to put things on hold. You could be investigating while the species was being destroyed. That's a simple change that could be made.

Finally, let me just say the committee obviously has some very important choices before it, choices that will have a lot to do with what Canada will look like forty, fifty, or a hundred years from now, whether there will still be beluga whales, whooping cranes, prairie roses, or grizzly bears for our grandchildren to enjoy in this country. I would say I would call this bill an investment in the future of Canada. You have an historic opportunity to pass a law that will protect Canada's rich biological heritage. As Julie suggested, I strongly urge you to act now, by passing effective legislation while our endangered species problem is at a relatively manageable stage compared with that of other developed countries. If we wait, as we have seen in the U.S., our endangered species problem will only become more difficult and more expensive to resolve.

Finally, on a personal note, just let me say that we're very fortunate in Canada, and I think sometimes we forget this. There are only 29 million of us living in the second-largest nation on Earth. There ought to be room for wild species and humans to co-exist in this country. We're also fortunate in that we have a level of education that allows us to understand and to anticipate the problems we cause to the environment, and levels of affluence and social stability that allow us the luxury of worrying about these problems. I say this simply because if Canada cannot muster the political will to protect its endangered species, how can we expect other countries to do so?

Ms Gelfand: Mr. Caccia, if you would allow, one of our guests would like to say a few words.

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Mr. Stewart Hamill (Individual Presentation): Good morning, I'm Stewart Hamel. I'm here as a landowner at the invitation of the Canadian Nature Federation.

I would like to say that endangered species legislation is a little like closing the barn door after the horses are gone. If our federal and provincial governments were doing a better job of protecting habitat, this legislation would not be necessary. But because we are doing such a poor job, the bill is very important.

Because it is important, it is absolutely necessary that it cover habitat, as we have heard, and that it cover private land. As a landowner, I want to emphasize that this must cover all land, including private land, otherwise it's just smoke and mirrors.

Most of what I hear about this bill is through the media. What I'm hearing and reading is: Great, we're going to have a law that prevents killing endangered species. Big deal. As a landowner, I resent the fact that this bill implies that people are killing endangered species, and as a landowner I feel that probably applies to me. Species are not becoming endangered because people are killing them; they're becoming endangered because they're losing their habitat.

That does raise an interesting question about who's going to identify the habitat needed for endangered species. It would require, once a species is listed, that someone identify the habitat that is required to protect it. It would be sort of like the process we went through in Ontario of evaluating and identifying significant wetlands. It would require a cooperative effort with provinces, and I think that is something that is very important and very necessary for a law like this.

Finally, here is a thought on landowner incentives. In Ontario we're going through a process of reinstating tax rebates for woodlands. If landowners, like me, who own and protect land because we want to protect the land, are properly taxed on those lands and not taxed as if we're going to subdivide them, then I see no need for further incentives to protect an endangered species that might live on that land.

However, if I have to forgo income on those lands, if as a farmer I have to stop farming a piece of land, or if I must stop cutting trees on a certain piece of land, then there should be some compensation. Or if, as a landowner, I offer to do or am requested to do something for an endangered species that actually causes out-of-pocket expenses, I should be compensated.

Other than that, if property taxes are properly assessed, I see no need for incentives.

Thank you for the opportunity.

The Chairman: Thank you. You have been very helpful, as were all the presentations. There are probably a number of questions, so

[Translation]

we will begin with Mrs. Guay.

Mrs. Guay (Laurentides): Your presentation this morning was very interesting. Obviously, nothing is ever perfect. I am always concerned when I am told that we need a very strong federal law, when we know that certain provinces, including Quebec, already have one. This law must not conflict with already existing laws. An agreement has been signed between the federal government and the provinces to respect the fact that some things already existed in these provinces.

I understand that environmental groups want to see a very strong, very solid piece of legislation that gives adequate protection to endangered species, however, there is also a political reality which must be taken into consideration.

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Therefore, I would like to know what you think about the laws that already exist. How can we manage and enforce another law that comes from the federal government and which is going to perhaps cause conflicts between the provinces and the federal government?

Ms Gelfand: I will try to answer in French. Then I will let Stewart answer, because he has more legal knowledge than I do.

We would support agreements between the federal and provincial governments if the laws already adopted by these provinces were more or less the equivalent of CEPA. We would support such agreements if they

[English]

meet the basic minimum requirements.

[Translation]

Agreements between the federal and provincial governments would therefore be acceptable.

[English]

Mr. Elgie: I'll add to that in English.

That's very similar to what the task force recommended, that where federal and provincial legislation overlaps, there should be some mechanism for addressing that overlap. Frankly, what we'd like is a federal law that provides the same kind of protection as the Quebec law provides.

There are some areas where the federal government simply is needed. Obviously, species that cannot survive in one province alone, that migrate or range beyond that province, will need some federal involvement to ensure their protection - aquatic species under the fisheries power, species on federal lands. So in any case, there will be a need for some federal involvement, but Quebec is really, in many ways, a model. Its act isn't perfect, but it would be nice to get the kind of protection that exists in the Quebec act into this one.

[Translation]

Mrs. Guay: If a species is endangered internationally, for example, if it is disappearing from a territory shared with the United States, how could we enforce the act? How can we tell the Americans that we will be enforcing our law to protect the species? What agreements could we strike with then?

[English]

Mr. Elgie: There are two things, really. At the moment, species protection isn't an issue on the U.S. side. They've had an act since 1973 that requires protection of endangered species and their critical habitat.

I'm not suggesting their act is perfect, but generally, the problem is the other way. It's things like the grizzly bear that are protected in the U.S. and lose their protection when they cross the 49th parallel.

In any event, though, more often there's a requirement for cooperation. In fact, a number of our migratory birds move to Mexico, by the way. There are at least a dozen of them that actually migrate across the Mexican border, too. The federal government, at the moment, given our constitutional status in Canada, is the level of government that can enter into binding agreements and negotiate with other countries to ensure reciprocal protection.

If Bruce Babbitt calls up Sergio Marchi and says, Sergio, what are you going to do about protection of the peregrine falcon when it comes into Canada, and if Minister Marchi says, well, sorry, that's a local issue; call one of the provinces... How would we feel if we phoned the U.S. and they said that's a local issue; talk to one of the states if you want to see species you're protecting taken care of down here?

So what I'm saying is that there's a need for both levels of government. Where there's overlap, clearly where provinces have equivalent legislation there's no doubt there should be a mechanism put in place to avoid that, and in the case of Quebec, I don't see that there's any reason to have overlap.

Ms Baumgartner: I think you've touched on probably one of the major issues in this debate, and I think that's why it's important - and I made my comments about the national accord - that we really need, first of all, as the federal government, to show leadership but truly want to work with the provinces and territories.

Somehow through this process we have made an assumption that the provinces don't want to protect species. That's very wrong and very far from the reality. What they don't want is to be told how to do it, and they want to work with the federal government to make it happen. So I think the national accord becomes a very important document when we're discussing endangered species.

On the international side, there again, to provide the mechanisms for developing cooperative agreements is what this legislation or any program should do. There are already joint recovery plans in process and in place to deal with species.

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For example, the presentation by Julie and Stewart made reference to the burrowing owl. There are efforts between the two countries to work together on that. The whooping crane is another example. There are cooperative efforts already going on between the two federal levels of government as well as the state and provincial governments affected by those species and the problems they're facing.

So I think the national accord is very critical.

[Translation]

Mrs. Guay: Thank you for your comments. We must however ensure that we do not penalize those who have already done a great deal of work to protect endangered species in comparison to those who do absolutely nothing and who have no legislation. I know that this is not protected, but some are already doing remarkable work.

In Ottawa, some bills have already been tabled, including Bill C-62 which deals with fisheries and the protection of fish habitat. We have always had some problems with overlap, even amongst our own federal departments, and I would like to have your opinion on this matter.

Which law will take precedence? As far as fish habitat is concerned, will it be the Canada Endangered Species Protection Act or will it be Bill C-62. Do you not think that we should first try to put some order into our own affairs, at the federal level, before adopting laws that will overlap with other laws? While doing this, we may very well waste a great deal of time and energy in the various departments.

[English]

Mr. Elgie: That's a good question. At the moment, CESPA actually makes reference to some of the powers under the Fisheries Act. For example, I believe clause 47 of this bill, dealing with permits, says that permits issued under another piece of federal legislation can qualify as an exemption permit under this act, provided the conditions are met for an exemption permit. I believe that was put in there to deal with Fisheries Act authorizations to avoid that kind of duplication.

I would add, though, that at the moment, at least in terms of habitat, the Fisheries Act is stronger, so there will be no need to look to the endangered species act if you're an endangered aquatic species. At the moment it provides weaker protection.

A number of questions are legitimate in terms of federal-provincial overlap in legislation. I guess the point that I think is most important to keep in mind, and I hope all of you do as well, is that from the perspective of endangered species, they don't care which government or which minister is protecting them. They just need protection. The question about who protects them has to be secondary to the question of whether we protect them. As long as the end result of all this patchwork is that species are guaranteed protection, who does it and whether it has a fleur-de-lis or a maple leaf on the hat of the legislation protecting it really isn't going to matter to our grandchildren in 100 years.

The Chairman: Mr. Adams.

Mr. Adams: Thank you, Mr. Chair.

Ms Baumgartner, I want to apologize for interrupting your presentation. I think it's the first time I've ever... I'm normally unnaturally controlled when I'm listening to witnesses, but I do want to say to you that as I look around the table now, all, or virtually all, of the MPs who are here at this moment -

An hon. member: Are wonderful.

Mr. Adams: - are wonderful, that's true, but they support this legislation. We know it has to be improved. But the situation we are in is one where we are relieved to be faced with this problem of fairly quickly going through revising this piece of material and getting it through. I know there are groups that have worked very, very hard on it, but to us, it's an opportunity, and we have to take it. There are political and legal realities to this thing that we have to work our way through.

Now, your federation has been involved with COSEWIC. If this were passed exactly as it is now, would the COSEWIC process be better or worse?

Ms Baumgartner: Actually, it would be worse. The decisions made by COSEWIC will not be guaranteed to take action. The fact that they have to go to the minister and ultimately his colleagues in cabinet for some blessing or whatever to be put into regulation to actually make them effective under the act makes COSEWIC worse by introducing that political interference.

Julie made reference to how COSEWIC functions now. There have been times, admittedly, where -

The Chairman: Why do you say it would be political interference? It could be political support.

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Ms Baumgartner: That would be an ideal world, but I guess we can't -

The Chairman: That's an assumption you have to prove.

Ms Baumgartner: My suggestion to you is that the government of the day isn't always the government dealing with the legislation. Governments change, as you know, and it's setting a precedent for future governments to take that opportunity. I think the decisions taken by COSEWIC are taken for scientific reasons and are based on scientific... Yes, there have been opportunities in the past where political interference has come trickling in, but when all is said and done, COSEWIC makes decisions based on science. So if we don't trust that, set up another mechanism.

Mr. Adams: That's right. I respect your opinion. We've just come through some very heavy hearings on biotechnology, where the science, to say the least, is divided, and in my view the concern of laypeople is right and the driving force of the science is actually wrong. That would be one example of it.

I did mention in my unfortunate intervention that in the main text of your report you said that most endangered species are on private land.

Mr. Chair, I don't know whether this is true or not, but it strikes me as a bit extraordinary. All the farms and all the cities in Ontario, for example, are on 13% of the land, so that's 87%... Maybe all of the species are crowded into the 13%, but surely, given your interest in science... Is that remark in your report true?

Ms Baumgartner: I must apologize. At some point in time, a lot of the species will at some point in their travelling... Species don't all stay in one place, and in many regions of the country - look at the west... Later on this morning, you're going to hear presentations from some ranchers who have thousands of acres of land and have endangered species living on their land.

I guess I was making a generalization, but in many parts of the country, in time, particularly with migratory species and species that move around... The grizzly bear that Stewart referred to may wander onto private lands at some point in its meandering. Private lands are a reality, and I think you can't separate out the various parts of land.

Mr. Adams: It's just that your report did say that most of the species are on private land. I mean, if it's 13% in Ontario, which is the most populated province we have, what is the percentage?

Mr. Elgie: We have some rough data on that.

Mr. Adams: Okay.

Mr. Chair, I am very concerned about this question of federal -

The Chairman: Just a moment, please. There's an intervention here.

Mr. Adams: I'm sorry.

The Chairman: Would you identify yourself, please?

Professor Lenore Fahrig (Assistant Professor, Department of Biology, Carleton University): My name is Lenore Fahrig. I'm an ecologist at Carleton University.

Most of the species in Canada are along the southern edge of the country, so you have a decrease in diversity of species as you go north. You also have an increase in private land ownership as you go south. That's probably the reason for this correlation between species endangerment and private lands. It's the fact that most of the species, and therefore most of the endangered species, are in the south and most of the private land is in the south.

Mr. Hamill: Also, species become endangered because of the activity of people. Therefore, where the people activity is highest you're going to find the endangered species, and that's in the south where the private land is.

Mr. Elgie: Do you want the statistics -

Mr. Adams: Great. Sure. It's a serious question and you -

Mr. Elgie: There's no precise science. It's a statistical... We've looked at all the COSEWIC status reports to date, and Sandy is right, nearly 50% of endangered species actually use private lands at some point in their life cycles. What you see, though, is that less than 10% of those species significantly depend on private lands for their survival.

Mr. Adams: Okay.

Mr. Elgie: So at least half use them at some point, but really only about 12% to 20% primarily depend on private lands.

Mr. Adams: Thank you for those answers.

I'm very concerned about the legality and the politics of some of this stuff, and I'd like any of you to talk about this business of what Stewart said about being ambiguous with regard to habitat. What is clearly federal jurisidiction? And on this business of the cross-border species...again, I know you've explained it. We have the summary and I know we're going to get the full report, but I'd like you to speak to that. And could you speak to the politics of it as well as to the legal side?

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My understanding is that in Ontario, where there's strong legislation at the moment, as we sit here it is one of the pieces of legislation targeted for change.

Ms Gelfand: Targeted for change!

Mr. Elgie: Just so I understand your question -

Mr. Adams: It's federal jurisdiction with respect to dealing with the habitat question -

Mr. Elgie: Of cross-border species or habitat -

Mr. Adams: It's habitat in general, and species moving from federal land to federal land and that kind of thing. And then the cross-border thing that you also covered quite well... And I think you mentioned the biodiversity convention and its definition. Could you elaborate on those things, please?

Mr. Elgie: Sure. I'll be far briefer than I should be and far lengthier with respect to those things than my colleagues probably want me to be. What I would recommend - and I can give this to you if you like - is an interesting letter written by the president of the Canadian Bar Association that answers some of the legal questions. I'll leave a copy with the clerk if you like.

Simply put, in terms of federal authority over habitat, the law is that if the federal government has the authority to deal with the problem, it has the authority to do all things that are necessary and incidental to effectively deal with that problem. It's called the necessary and incidental doctrine.

So if the federal government has authority to protect a species, be it a migratory bird or a fish, it has the authority to protect the habitat of that species. That's the reason the Fisheries Act has habitat protection in it. The Constitution says the federal government has power over fisheries - it doesn't say fisheries habitat - but the Fisheries Act has habitat protection in it because the federal government has the power to include things that are necessary to achieve the constitutional powers it has.

So on federal land it's easy. They own the land and they have the authority. Outside federal land, though, if they have regulatory authority over a problem - in this case, protecting endangered species - they have the authority to do what's necessary to protect it.

Mr. Adams: Then let me say this. If I were a province or some other entity, and I wanted to challenge the second part... I can well see that no one is going to challenge federal lands and the actual situation there. What are we likely to face in the provinces that don't have legislation and apparently don't yet have the will to deal with this?

Mr. Elgie: Are you talking about political or legal challenges?

Mr. Adams: Both.

Mr. Elgie: In terms of the legal challenge, I think virtually every major piece of federal environmental legislation ever passed has been subject to a constitutional challenge. That's just the nature of the environment. The Fisheries Act... CEPA is under one right now.

If you want a litigation-proof statute, make it say nothing. Nobody will ever litigate.

In terms of the political challenge, I think you're right. Some provinces will support the idea of federal leadership and others will have concerns. That's no surprise. That's the reality of our country. I would say, though, that if a province is telling the federal government it should stay out of the business of legislating protection of migratory species that are on provincial habitat, and if that province isn't prepared to put that protection in place itself, the argument's kind of hollow.

If the province is saying it's already doing it and the provisions are in place so there's no need for the federal government to do it, then maybe there should be some mechanism to avoid that overlap. But if they're telling you not to do it and they're saying they're not going to do it either, that's a different question.

I agree with Sandy when she says that the provinces aren't saying they want species to be wiped out, but there are tough political choices in some cases, like that marbled murrelet nest I showed you. When it comes to a choice between offending the sensibilities of some provinces that don't want the federal government to act and allowing for the extinction of species because provinces don't protect their habitats, I know which side I come down on.

Mr. Adams: Could you talk in a similar way about the cross-border thing?

Let us say that we, as the federal government, have made a commitment to the biodiversity convention on behalf of Canada, and we bring that into the country and face legal and political challenges again. Could you talk to that? Are we on really strong ground? We have signed this convention and therefore we've taken on these powers to ourselves; we come into the country...

Mr. Elgie: In a legal sense, I think there's virtually no doubt that the federal government has authority over the international aspects of endangered species protection. And I shouldn't say ``never'', but I doubt that there's a constitutional law professor in the country who would seriously question that issue. They may question where the line stops, but they'd agree with the principle.

The principle that international environmental problems - cross-border problems - are within federal jurisdiction is pretty well accepted. We have an International River Improvements Act that deals with international rivers in Canada. CEPA already has provisions for transboundary air pollution. The Supreme Court of Canada has already decided that cross-border environmental problems - in a case called Interprovincial Cooperatives - are within federal jurisdiction.

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So from a legal sense, the federal government clearly has the authority to ensure the protection of species whose survival depends upon cross-border protection, be that international or interprovincial protection. That includes the power to do what's necessary to ensure their protection, which is habitat. So legally, I'd say there's very little doubt the federal government's on solid ground.

If the federal government passed an act that dealt with every endangered species wherever it lived - even a plant that was on the provincial lawn at the Alberta legislature - I think there's a reasonable argument that the federal government may have the constitutional power, but it'd be really questionable - and the Canadian Bar Association president says the same thing. You probably have that power, but we can't say for sure. But you clearly have power over a cross-border species, over migratory birds and their habitat, over aquatic species, etc.

Mr. Adams: I've forgotten exactly, but you mentioned a definition from the biodiversity clause, I think - the definition of habitat or definition... Could you comment on that?

Mr. Elgie: I'll have to take a look at my brief, but the main fact is that the bill doesn't currently define habitat, and I don't think it's self-evident.

Part of this is an enforcement issue, too, but it's also a recognition. It's not self-evident to the average person, or even to the average enforcement officer, what the habitat of a Furbish lousewort is, or what the habitat of a loggerhead shrike is. We might have a bit better idea of fish habitat because they live in rivers and lakes. So I think it's important that we actually identify what the habitat is.

This is pretty much modelled on the biodiversity convention, which says it's an area or type of site where an organism or population naturally occurs, or formerly occurred and ``has the potential to be reintroduced''.

That last part comes from the Australian act - the idea that because you're dealing with endangered species, you don't just want the areas they're living in now, you want the areas where they have lived and could be reintroduced.

Mr. Adams: But if we've accepted that definition in the biodiversity convention, and if that then gives us these powers in law, haven't we in fact accepted it within the country as well?

Mr. Elgie: Well, you're in a grey area. International conventions, technically speaking, cannot be enforced in Canadian courts. Another country could take you to an international tribunal for failing to comply with it, or it could be the subject of a trade challenge before the environmental commission, for example. Sometimes environmental treaties are incorporated by reference, but the federal government certainly has a political commitment. It has a binding commitment to other nations.

In the Canadian courts, it's a grey area as to whether or not a Canadian citizen could go to court and get a court to say the federal government must pass an endangered species act right now. But other nations could certainly compel Canada to live up to its obligations, and that's why the international species is so important. The countries of the earth have all agreed that protection of biodiversity is one of the most critical problems facing the planet, and it's sort of the international accord, if you will, for endangered species protection. Canada certainly has to fulfil its part by making sure species that are shared with other nations will be protected in our country.

Mr. Adams: Thank you, Mr. Chairman.

The Chairman: Madam Kraft Sloan, please.

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

Sandy and Julie, you've been involved with COSEWIC. I'm wondering if you can tell me how COSEWIC is currently operating. What do you feel are some of the good things about it, and what are some of the things that need to be changed? Do you feel the legislation addresses some of those things that need to be changed? I know you talked about the listing process, but I'm talking now about the organization of COSEWIC as it is laid out in the legislation. I wonder if you can give me some insights on that.

Ms Gelfand: In the way in which it currently operates, there is a scientist from each jurisdiction - from each province, territory and the federal government, at least two departments, if not three -

Ms Baumgartner: It's Parks Canada, DFO, Environment Canada and the Canadian Museum of Nature.

Ms Gelfand: As well, there are three representatives from the non-governmental organizations - the World Wildlife Fund, the Canadian Nature Federation and the Canadian Wildlife Federation.

Status reports are usually prepared by scientists, are sent to COSEWIC, and are reviewed -

Ms Baumgartner: You forgot the subcommittee chairs.

Ms Gelfand: That's right. There are also subcommittees on each of the different types of species. There are subcommittee chairs, and members who may or may not be on COSEWIC are on those subcommittees.

Ms Baumgartner: But the subcommittee chairs are actually also members of the main COSEWIC body.

Mrs. Kraft Sloan: Are these scientists at large from academic institutions, or are they just coming from governmental or non-governmental organizations?

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Ms Baumgartner: The subcommittee chairs tend to come from universities or from at large. For example, the current chair of COSEWIC is not attached to any body at this point.

Ms Gelfand: And then there's the Canadian Museum of Nature as well, although I can't keep track of whether that's government or non-government any more.

Because we have seen political lobbying, I think one of the good things is that there is some public interest on the committee. The scientists come there as scientists, but sometimes they have to respond to their political masters. Ultimately, that's who pays their paycheques. We have seen examples in which there has been political bargaining over whether or not a species should be endangered or threatened. I don't think this is a good thing. What is good is the fact that there are some independent people there, such as the non-profit organizations, to make a difference and to step in when that stuff happens.

Mrs. Kraft Sloan: What else is good about it?

Ms Baumgartner: Actually, the status reports that are prepared are generally good documents because they provide a good background and information on the species. Based on the currently available information, what they do is set out the status of the species. They outline the habitat needs, they outline the distribution and the trends in the species. Is it increasing, is it decreasing? They also set out current protection-type activities that are going on. So they give you a really good snapshot of the species' status.

What isn't in the legislation and will need to be built in - and it's something that COSEWIC has never formally come to grips with or developed a policy on - is whether or not they do field research. As COSEWIC has expanded and has been reviewing plant species and invertebrates, there hasn't been information available. One of the shortcomings in the bill is that it says COSEWIC will prepare status reports based on available information. For a lot of species, there isn't any information. That information will have to be gathered and they'll actually have to do field studies, but it's not that expensive.

Some of the ones that have been done to date have looked at three or four plant species. We've had authors go out to do field studies. Obviously they're doing it on a voluntary basis or without getting compensated to a great extent, because it costs $2,000 or $3,000 dollars to develop a status report on two or three various plant species. And I give that example because it's a recent one that has just come through.

Mrs. Kraft Sloan: Is it possible to use the work of community groups? There are some community groups that are involved in inventory, identification, restoration and things like that. They may not be scientists, but they are working with scientists and are doing a lot of field work.

Ms Baumgartner: That information will be critical because it helps to lead them in the right direction - you know, these are trends, these are some of the things that we've noticed as we've gone year after year to look at species. That information is intended to feed into the scientific loop anyway, so hopefully it would be built into that process.

Mrs. Kraft Sloan: So it's almost as though these status reports could be the basis of a recovery plan. There's a lot of information that gets fed into...

Ms Gelfand: I wanted to answer on some of the bad things with COSEWIC. Right now, listing doesn't mean a damn thing - excuse the language. You list, and that's it. I think Canadians think that something actually happens to these species because we've produced a list every year, but right now nothing happens to these species.

Actually, I shouldn't say that, because it's an exaggeration. There are some recovery plans under RENEW, but one of the other things that is difficult with COSEWIC and RENEW right now is that they are all voluntary. There's never enough money. Some departments even threaten withholding money from COSEWIC. Some departments will play politics even in the determination of whether or not a status report should be written. For example, should there have been a status report for cod or for salmon? I think COSEWIC, as a body, would probably like to have written a report on cod, but the department didn't want us to.

Ms Baumgartner: I think that's where we get back to my earlier concern about what happens once those species are listed. If they somehow go to another body for integration into the legislation or to become regulation - and I'm sorry if I'm going to be critical of a particular department of this government - you will have some departments that are trying to influence. We saw this happen at the IUCN meeting, where DFO was concerned about the listing of northern cod.

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There are a lot of different aspects that you have to look at when you're reviewing species of fish particularly. They're not as easy to count as grizzly bears, but ultimately, I'd question if you could find anyone in Canada who wouldn't say that northern cod has declined significantly and should be listed. IUCN was listing it as the equivalent of what we would call vulnerable. They were saying there was a bit of a problem here. They probably should have listed it about five or ten years ago, but it was just to identify a problem.

I think what we're trying to do is make sure that we don't have this happening with this process. So yes, even leading up to it, you want to make sure that you're reviewing all species for the right reasons, and that you're then making the right decisions afterwards to protect them.

Julie touched a bit on the funding, and I want to touch on that as well. If there is any problem with COSEWIC right now, it is that there aren't funds. To put it in perspective, up to now Environment Canada was putting in a pot of money, and for the last three years that was matched by our organization. Prior to that it was matched by the World Wildlife Fund.

The money that we raised by going out to individual Canadians was going into preparing those status reports. That really demonstrated the lack of commitment from the federal government to put money towards them. The only reason there are only 276 species listed is that they didn't have the time or the money or the resources to actually look at the other species in Canada to determine whether or not they warranted a designation. The committee has done the best job it could with the resources it had. We need to make sure they can continue to do that, but they'll need resources and they'll need people and money to do the job.

Mrs. Kraft Sloan: How do the provinces -

The Chairman: I'm sorry, Mrs. Kraft Sloan, but we have to move on to Mr. Taylor,Mr. Knutson, Mrs. Payne and the chair.

Mr. Taylor: Thank you very much, Mr. Chairman.

I want to express welcome to the witnesses. The presentation this morning has been extremely enlightening. Thank you very much for doing all of the work that you have done. Stewart talked about preparing very quickly, but obviously your preparation is also backgrounded with a lifetime of research and activity, interest and concern. We benefit greatly from that, and I thank you for being able to pull it together for us so quickly.

I'm a little concerned about all the apologizing that's going on. I don't think it's necessary to apologize for being critical of the legislation or of the government departments. When looking at the legislation, I think it's important for us to know if it has faults or if the departments have faults. As a result, it's important for that to be highlighted. No apologizing is necessary.

Mr. Adams apologized as well for his comments earlier, but then he said it's because we have to hurry through this. In my mind, there's no need to hurry through this, because it's been a long process to get to this point. Simply because the government has put forward a piece of legislation is no reason to rush through it at this point. We've spent a lot of time getting here, so let's spend the time that's necessary to do it right, regardless of what it takes. We still have some talking to do. The government's package is not the correct one or the adequate one, so if we can meet the needs of the task force report, let's try to do that as closely as we can. Your information is most important in that regard.

I think the jurisdiction issue is an important one, and you've highlighted that. I just want to question a couple of things in that regard. Government members did talk about the 60%-40% number that was thrown out. You've responded collectively somewhat in this regard, but in your response about why only 40% would be covered by this legislation, one of the things that you didn't mention is that the provinces and the territories - but the provinces in particular - have the jurisdiction over mammals and plants primarily. That makes up for a large percentage of those that would be on the list. As a result, the accord becomes very important in this whole picture.

The media has presented this package as an accord signed by the federal government and provinces. You highlighted the fact that six provinces signed the accord. Can you tell us what is happening in regard to the six who haven't? Failing the six signing onto the accord, or failing any living up to the nature of the accord, is it your opinion that the federal government has any enforcement powers, in any case? Could you explain that to us, please.

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Ms Gelfand: It has no enforcement under the accord.

Mr. Taylor: Any enforcement powers at all?

Ms Gelfand: At this point, no.

Mr. Taylor: Under the Canada Health Act, for example, if the provinces do something that doesn't meet national standards the federal government has financial powers to pressure the provinces to respond to the national responsibility set by the Canada Health Act. Does the federal government have any leverage whatsoever should provinces not sign onto the accord, or if they have signed on, not live up to their obligations under the accord?

Ms Gelfand: As a non-lawyer, I would say I don't think so, but...

Mr. Elgie: You've asked two questions. First, what's happening with provincial implementation and sign-on, and two, what can the federal government do. You probably should ask the Minister of the Environment which provinces have signed. I was at the negotiating session but I don't know which ones have or haven't signed. I know the minister said in a letter to The Globe and Mail last week that six had signed. At least a couple of those have gone back subsequently and been quoted by their provincial media as saying they don't think they need to actually pass specific endangered species legislation to comply with the accord. So at least in a couple of cases the level of enthusiasm for the subject dampened when they left Charlottetown.

One of my worries is that it is called an agreement in principle. It's not even called an agreement. It's not binding. There are no enforcement mechanisms under it and there are no time lines for action, either.

Having said that, I think it's a good thing. This agreement in principle is a start, at least, but it won't be much help for endangered species to know that they're protected under a non-binding agreement in principle.

In terms of whether or not the government can do anything, no, under the accord there are no powers. The federal government would only gain powers if it created them in this legislation. This is why the model I would encourage is that the federal government legislate to the full extent of its jurisdiction, recognizing that there may be some potential overlap. The Constitution doesn't draw a rigid line between a federal and provincial power in environment or any other area. The Fisheries Act and provincial water pollution legislation have almost 100% overlap in many cases.

The federal government ought to have legislation on the books so that it can ensure protection of species in its authority when it's needed. Where there's a provincial law that overlaps with part of that, then by all means we don't need two laws saying the same thing. There are lots of models out there for avoiding it. There are agreements under CEAA. There are equivalency models under CEPA. You have a model under the Criminal Code in terms of cruelty to animals where provinces issue exemption permits under a federal prohibition.

So figuring out how to avoid situations where there is a duplication would be a wonderful problem to have to deal with. The federal government would gain power, then, if it creates that authority in this bill and then allows it to be waived or modified where provinces are in fact doing as much or more than its act is doing. But it must create the power in this bill.

Mr. Taylor: I also want to question Sandy briefly. I don't think she had enough time to finish some of the things in her report. She had mentioned in her opening remarks the task force and some of the recommendations in the task force dealing with incentives and compensation, or financing.

Would you care to comment a little bit further on particularly financing and additional funds that might be necessary?

Ms Baumgartner: Actually, my brief doesn't touch on that. I guess I got frustrated by the end and thought maybe it's somebody else's job to figure out how to pay for it. I was being cynical, and I shouldn't have been. There is an obvious cost to this, but I don't think it's a significant cost. I think it's an expense we should be willing...and a long time coming.

The task force talked in brief about raising funds towards that. There are innovative ways. We talked in general terms about conservations bonds. There may be legal reasons why that doesn't work. Something they're trying in the U.S. is a tax - and I know people in this country don't like to hear about taxes; it's just being tested there - on outdoor equipment, such as binoculars and camping equipment, that type of thing, a tax very specifically geared towards the endangered species program.

We're looking at different ways of raising funds, whether it be through taxation or conservation bonds. But the public at large - and Julie and Stewart can attest to this as well - also wants to participate. Involvement in the process through organizations like ours brings money or resources to the table as well. Similarly, the provinces bring resources.

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If we look at the provincial governments that currently are involved in this process, and we look at recovery plans and recovery implementation, the people putting those together make up government, federal and provincial, as well as the NGO community. You bring your time. You bring your own commitment. You bring the dollars to the table. The implementation then flows out from that. So I think we have to be really creative in that.

The task force tried to deal with it. We touched on it, but really, we didn't have enough time to talk about it in detail. Other things we talked about in terms of incentives were things that were touched on briefly by this gentleman, including incentives for landowners, or compensation.

If you're going to be taking some of your land out of production to protect an endangered species there should perhaps be some compensation built in, or incentives about transferring your land to conservation organizations for conservation purposes through conservation easements. Tax benefits, those types of things, all can be built into the package.

The task force, unfortunately, didn't really have the time, and didn't have the expertise required, to look at those things, but they're critical to ensure that the legislation is effective.

The Chairman: Thank you.

Mr. Knutson, followed by Madame Payne and the chair.

Mr. Knutson (Elgin - Norfolk): In terms of this issue of money for COSEWIC, is it fixed in the proposed legislation?

Ms Gelfand: No.

Mr. Elgie: In fact, the legislation is really wishy-washy. The task force recommended that the minister should provide necessary support. I think this says the minister ``may'' provide the support needed for COSEWIC to do its work.

In terms of the cost, though, if you want to know, according to the best numbers I can get we spend between $2 million and $3 million a year federally on endangered species protection. If you look at the numbers in Australia and the U.S., two countries with federal endangered species laws, they spend about 35¢ per capita. If you converted that to Canada, we'd be at about $8 million or$9 million for the total. But that's not built into the act. It's discretionary.

Mr. Knutson: On the issue you raised about how we're developing recovery plans and there's the potential that they'll just sit on the shelf and won't be implemented, I wonder if you can give us some examples from other jurisdictions as to how we might give that provision more teeth.

Mr. Elgie: In terms of three-step process for recovery plans, you decide if it's feasible. If it is, you do a recovery plan. Then the government does an implementation report half a year later. But the ultimate issue is subclause 42(1), which says the minister ``may'' pass regulations to implement measures in recovery plans.

This is very simple. It says the minister ``shall'' pass regulations - that is, if a recovery plan has said this is what's wrong with the species, this is what you must do to save it. Don't forget, the recovery plans are prepared by the minister, so it's not as though something is being foisted on the minister in the first place. There's no reason not to say regulations ``shall'' be passed to implement those requirements.

Ms Baumgartner: I might add a caution to that, though, that what's important - and I've included this in our recommendation - is that the recovery plan should lay out all the possible options, and then in the implementation, the options the federal government ``will'' undertake. They don't have to be the whole recovery plan, because there may be other partners in the recovery process that will undertake other parts of the plan. They might be the provincial government or they might be an NGO.

So the recovery plan should lay out all the options, but then there should be some mechanism where the federal government has an obligation to, within their capacity...what things they'll do from the recovery plan.

Mr. Knutson: Is your recommendation modelled after another jurisdiction's?

Mr. Elgie: No. Other jurisdictions don't have the recovery planning provisions this bill has. Other jurisdictions simply say no one can harm or kill a species, and no one can destroy or disturb their critical habitat or residence.

To now, recovery plans have always been done through RENEW. This likely will be the blueprint for recovery planning, I presume, that will be bought into by federal-provincial planning. The Australian and U.S. acts have something very similar, but provincial laws don't actually have detailed elements about recovery plan implementation.

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Mr. Knutson: You mentioned cod and the politics at the COSEWIC level about whether cod would be considered endangered or vulnerable. If you were to do a summary of the case history of the cod decision, would you say there was a gross violation of the public interest in this specific case?

Ms Gelfand: I would probably say yes. At the very least, we should have done a status report. COSEWIC should have had a status report prepared so the members could then make a decision on whether or not it was listed - COSEWIC keeps track of the species it looks at, and then does not list - whether there is enough information, or whether it's threatened, vulnerable or endangered.

My answer would be there was a violation.

Mr. Knutson: Obviously, there is a parallel process in place. I'm not an expert on cod or the east coast fisheries. But somebody at some point said there is a serious problem here. So we had this huge moratorium and a lot of money went in to help the people affected by it go through a transition. I'm wondering what difference it would have made in the end.

Ms Gelfand: I think if COSEWIC was in a perfect world, we would have -

Mr. Knutson: It's not.

Ms Gelfand: It's not, but if it had been, we probably would have had a status report long before it got to the measures we had to make. If we had a status report 15 or maybe even 20 years ago, we would have probably been able to make some decisions. We would have at least put more pressure on the political beings to say this is a vulnerable species, so do something about it now.

Mr. Knutson: Do you know why there wasn't one 15 or 20 years ago?

Mr. Gelfand: I don't know. I wasn't personally sitting on COSEWIC at the time.

Mr. Knutson: So it might have been the fault of scientists and not necessarily the result of political interference.

Ms Gelfand: It's possible but not probable.

Ms Baumgartner: I can only make assumptions, but my guess is that there are influences, whether said or not said, on COSEWIC as a body. It tends not to deal with commercial species. I'm making generalizations. I have nothing other than my own personal opinion to base this on. But it tends to be the case that there is not the will to prepare those.

Again, if we were living in an ideal world and there had been a plan in place, it might have helped ease the impact. I don't know. I'm not from the east coast. Maybe it wouldn't have. But if you could have said 15 years ago this is where we're going - I know we're talking species protection versus economics - it might have helped to at least slow down the rate.

I'm also told there are many other things going on with population increases and decreases in cod, but I think earlier warning bells for all species, commercial or not, are really important.

The Chairman: Thank you.

Mme Payne, s'il vous plaît.

Mrs. Payne (St. John's West): Thank you, Mr. Chairman.

I thank you for the presentations. I didn't get here in time to hear all of them, but I've been sitting here chomping at the bit ever since came in waiting for someone to bring up the fishery on the east coast. My colleague Mr. Knutson has broken the ice here.

It's rather irritating for somebody like me, coming from Newfoundland, to know that for years and years and years the harvesters of cod told everybody who would listen this species was in danger, and yet nobody did anything about it.

Now, we have a similar situation where we have a group of people saying some species of seals are in danger, when in reality they are not. In fact, they are now destroying a part of the food chain for our cod, which people like you are saying should be on the endangered or the vulnerable list.

For the past 10 or 15 years, fishermen have been saying quit catching capelin. Nobody is listening. Can COSEWIC add any teeth to this problem? Is there something COSEWIC can do? The matter is not a secret. It has been talked about for years and years, but as with the northern cod, nothing has been done about it.

By the way, if you want an opinion from somebody whose husband is a fisherman, I don't think cod is endangered. I think it's vulnerable but not endangered.

Thank you, Mr. Chairman.

Mr. Elgie: As a non-COSEWIC member, let me just add a thought on this. I think it's really, really important we do everything we can to create as credible and scientifically verifiable a list as we can under this bill.

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I think it's really important to separate out two different decisions. One is the identification of those species at risk in Canada and the threats they face. The other is the protection measures that should be taken to address those threats.

The first should not be politically influenced. Identifying the species at risk and the threats they face is something that should be insulated from political interference and done in as credible a scientific manner as we can muster.

What we do to protect them is something where political and economic considerations should and will weigh in. This is why this whole exemption permit process is in there in the first place, not because we exempt things to protect species but because we exempt them from protection.

I think the task force would agree with me on this. It is critical that the list, as much as it can, be scientifically based. This means if the government really intends to implement all the species COSEWIC lists, there would be no need to put discretion into the bill. If their intention was to include them all, the bill should simply say it will include them all. What we've seen is some of the provincial acts allow cabinet to make listing decisions, and in many cases provincial cabinets have not listed species that COSEWIC has said are scientifically endangered.

All the benefits from the awareness of this identification, over and above legal protection, don't flow. So the best way to get things like capelin - or cod, in my view - recognized as endangered when the science says they are, is to do everything we can to insulate the COSEWIC process from political interference and put all those political concerns into the protection box of the bill.

Mrs. Payne: I agree with you in part. But if we wait as we waited for scientific information and evidence to protect the cod, then we might be waiting until all the capelin in the ocean are caught. This is because we're not dealing with just the fishing of capelin. We're dealing with the use of technology that is destroying the breeding and feeding grounds. We are also catching and selling the females, and only the female has any value on the market.

At best, the science of the fishery is an inexact science.

Ms Baumgartner: I believe the purpose of COSEWIC is touched on in the bill. It may not be touched on to the extent it should be, but certainly we talked about it at the task force. The purpose was traditional community knowledge needs to be built in as well, because probably those are the people who know best what is going on with a species. They know the trends. They know they come back here every year and that this year there are not as many fish.

You mentioned the cod, and I just wanted to clarify. Sometimes we use terms interchangeably. We say endangered when maybe we don't mean it. You are quite right. The cod is probably vulnerable. In this legislation, one of the goods parts, if I could find one, is that vulnerable species will be identified and the development of management plans will be required.

Hopefully those management plans will be more comprehensive. Hopefully they won't just be for single species and they'll deal with the entire area. They'll look at the entire package and say there are vulnerable cod here. They will ask why this is happening and what management tools can be put in place to ensure the population will increase instead of continuing to decline.

So I think if there is an important part in the legislation where COSEWIC could help, it would be identifying vulnerable species.

Ms Gelfand: In the bill as it now stands, one of the things that I think will help COSEWIC is that it doesn't just talk about scientific knowledge. It also says traditional knowledge. This usually means community. So along with the scientists, people who live in the area will be bringing in their information to COSEWIC to help decide whether or not there is an issue.

You say your husband is a fisherman and he knows this stuff is happening. Because of the way it is implemented now within COSEWIC in this bill, this kind of information would be brought to bear and I think it would be helpful. I think a good thing about this bill is that COSEWIC is not just talking about science. It is also talking about traditional knowledge.

The other thing to remember is that in the preamble of the bill we have the precautionary principle. It says ``cost effective measures to prevent the reduction or loss of the species should not be postponed for a lack of scientific certainty.''

We don't have to wait until the scientists say they are absolutely sure. If we have a doubt and we think something is happening, if the community and the traditional users of the species tell us there is a problem, we should be able to act.

Mrs. Payne: I have one more question for the gentleman who is a landowner. I'm sorry. I didn't catch your name. Are you a farmer? What type of land do you own?

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Mr. Hamill: My property is natural woodland. It used to be a farm, but it shouldn't have been farmed. I'm restoring it. It's mostly for wildlife and recreational purposes.

Mrs. Payne: What other incentives do you see? You mentioned taxation, and obviously the bill is not going far enough, in your mind, to give incentive to landowners to protect habitat. Are there some other things you think should be done beside the tax incentives?

Mr. Hamill: I would think, first, there would have to be some kind of identification. I would have to know that I have habitat, some kind of recognition that I am protecting habitat or an endangered species on my property, something similar to the program that recognizes landowners who are protecting wetlands. I see it as a similar process to what happened in Ontario for the identification and protection of significant wetlands, and the type of compensation that would be needed would be over and above what is currently being proposed for fair property taxation.

Mrs. Payne: So you wouldn't be thinking along the lines of value for the unused portion of your property - in other words, if you were using it for wood cutting, the value of the wood that you would lose by reason of not cutting the wood off that property.

Mr. Hamill: Yes, that's one of the times when there should be some compensation, if there is income forgone because of land that is not cultivated or trees that are not cut.

Mrs. Payne: Thank you.

The Chairman: I have a few brief questions from the chair. I don't want to encroach too much into the time for the next session, which is due to start in almost one minute, so I would appreciate it if you would reciprocate with short answers.

To begin with, would someone be able to provide us, not now, with a definition of ecosystem so that we can have a look at it, at least?

Ms Gelfand: Yes.

The Chairman: Fine.

The next question has to do with urban sprawl. If urban sprawl is a phenomenon that does have the effect of damaging and reducing habitat, how do you propose that it be dealt with?

Mr. Elgie: Is that a specific question?

The Chairman: Yes, it is.

Mr. Elgie: I think solving the problem of urban sprawl is probably beyond the specific confines of this bill, obviously. He's tried something very innovative recently -

The Chairman: You're putting forward this morning something that at times goes beyond the specific confines of this bill. Actually, that has been the case for the last two hours. So it is very fair to ask you a question from this end that goes beyond the specifics of this bill.

Mr. Elgie: There are two things. One of the things this bill can do is provide a tangible, manifest indicator when urban sprawl has gone too far, because the species that depend on the land that is the subject of the sprawl will give us a clear warning signal. They'll be the canary in the coal mine, if you will, that will force us to deal with the issue.

Secondly, there are places - and I won't go into it - such as B.C. and Oregon that are looking at comprehensive land use planning. I think ultimately that's what you need to do to deal with urban sprawl. You need to have overall land use planning that incorporates ecological values into plans. But this bill can be tremendously valuable in giving us measurable indicators of when urban areas or other natural areas have been destroyed too far.

The Chairman: Is there a parallel effort taking place in relation to provincial legislation that does permit urban sprawl and thus affects the availability of existing habitat?

Mr. Elgie: Ontario just repealed all the progressive amendments to the planning act that did call for ecologically based land use planning, so I hate to say that at least in this province the answer is no. In B.C. there is movement in that direction through the comprehensive land use planning process. I don't know about the other jurisdictions.

The Chairman: The word ``overlap'' has been used frequently this morning, i.e, overlap of laws. It is, at the present time, a dangerous word politically. It perhaps would be preferable to speak in terms of complementarity - namely, laws that complement and reinforce each other in different jurisdictions, and possibly mirror each other, so that the goal everybody has in mind is achieved. The moment we talk about overlap, the immediate, knee-jerk reaction is that there's duplication of efforts, unnecessary expenditures and the like.

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Could I have a comment as to whether this observation is in your view correct or adequate.

Ms Baumgartner: Dealing with this particular piece of legislation, certainly, you're absolutely right. I don't think there is any overlap between the federal and provincial governments, nor do I see that there will be any overlap with other pieces of legislation dealing with wildlife, such as the Fisheries Act.

I think they are all necessary and very complementary. If the perception is that using overlap might create the impression of duplication, you're quite right, and we should be looking at mirrors or complementarity. You need them all.

The Chairman: Would it be fair to conclude, then, that the convergence of interest of all the people in this room would be to achieve mirror legislation at the federal and provincial levels so as to ensure the highest possible degree of habitat protection and critical habitat definition?

Ms Gelfand: Yes.

The Chairman: Thank you.

Mr. Elgie: The difficult question is -

Ms Gelfand: Leadership.

Mr. Elgie: - what happens if some parts of that coalition don't fulfil their part of the bargain?

The Chairman: Finally, in terms of cod, Ms Baumgartner, I think you're dead right when you expressed - to my dismay, I must admit - a certain degree of unease in leaving the decision to the political arm when it comes to COSEWIC. The cod experience in a way reinforces your view. According to Statistics Canada, and drawing just from memory, we fished cod in the 1970s at the rate of 600,000 tonnes per year off the Newfoundland coast in area 2J. In the 1980s the catch dropped to between 200,000 and 250,000 tonnes.

One day in February 1990, a man at Memorial University named Leslie Harris produced a report saying the catch ought to be stopped. He called for a moratorium. It took two and a half years, until July 1992, for the political arm to move and for John Crosbie to announce the moratorium. From that moment on we saw a drop from 200,000 tonnes to zero, and you know where we are today.

Had that decision not been left in the hands of the political arm, of course, but left to a scientific body of some type, recognized by the law, the action probably would have been immediate. I don't know. But I have to ask you, who would have taken the responsibility, the political responsibility, of introducing the moratorium affecting all the communities on the east coast?

Somehow, somewhere, in our system there has to be political responsibility, even if it means bad decisions. This is why you're right in what you say, but we cannot do it the way you're suggesting. In our system there has to be political accountability. The moment COSEWIC becomes the ultimate agency that makes the decision, you remove political accountability. That is something I find extremely difficult to go along with.

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Could you make a brief comment, please.

Ms Baumgartner: I think we would all agree, though, that the political decisions and the political implications of the listing and how you deal with that listing must come after. That's where the variation on how you deal with the problem should be dealt with.

If you're not going to allow the listing process to be pure in that they're listed based purely on the reasons why they should be listed - the scientific information that's set out - then why bother having this body anyway if its decisions are going to be made over here?

I agree that the political things have to come into play, but they should come in after the listing. We need to identify them somewhere. because obviously if you referenced the cod...we knew that, but politically there wasn't a will to get it listed.

The Chairman: That's a very helpful clarification. because the CRTC, the Canadian Transport Commission or any other agency makes decisions, but they can be modified by cabinet, so there is an ultimate political responsibility. If you accept that procedure, then we understand better what you're proposing.

Ms Baumgartner: I guess what we want is the species to be listed. How you deal with it after it is listed is where you bring in the political decision-making.

The Chairman: It's 11:10 a.m. and this is time we have stolen from the next group, so we will briefly again express our gratitude for your presentation and move on to the next step. Thank you very much.

We will adjourn.

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