EVIDENCE

[Recorded by Electronic Apparatus]

Monday, January 27, 1997

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[Translation]

The Chairman: Good day, ladies and gentlemen. Welcome to this meeting of the Committee on Bill C-65.

[English]

In the name of the members of our committee present here this morning, I would like to welcome everybody in this room to the hearings on Bill C-65.

This bill, as you probably know, is the result of extensive consultations that took place before the bill was ever drafted, consultations that took place with interested parties and sectors. Therefore it is not legislation that was produced in a vacuum or in isolation from Canadians who are concerned with wildlife and with forests. It is the result of very thorough and lengthy conversations and discussions. They led to the production of a document, which then served as the basis for the drafting of this bill.

As you know, this bill has passed second reading in the House of Commons and is before this committee. The committee is glad to hold its hearings until tomorrow noon in Vancouver, and then for another day and a half in Edmonton.

The number of witnesses is forcing a certain discipline of time on our committee. As the clerk indicated in his letter to witnesses, we have to, in fairness to subsequent witnesses throughout the day, enforce a fairly firm rule of timing. Therefore, after 10 minutes of a presentation by a group, I will give a little signal, and that will give you a couple of minutes to wrap up your presentation. That is a way of providing a certain balance throughout the day, in fairness to subsequent witnesses.

We have a long day ahead of us. We'll start without delay with the B.C. Endangered Species Coalition, represented by Kate Smallwood.

We'd like you to introduce your colleagues and start with your presentation, please.

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Ms Kate Smallwood (Campaign Coordinator, B.C. Endangered Species Coalition): My name is Kate Smallwood. I'm the campaign coordinator for the B.C. Endangered Species Coalition.

You will also be hearing today from three other representatives of member organizations: Linda Nowlan from West Coast Environmental Law, David Boyd from Sierra Legal Defence Fund, and Anne Murray from the Federation of B.C. Naturalists.

I should quickly say in response to the timing issue that I did discuss this with Norm beforehand, and we had budgeted our time on 15 minutes. Is that a problem?

The Chairman: If that is what he suggested, we....

Ms Smallwood: So we've geared ours for 15 minutes, not 10.

The Chairman: That's fine. Please start. The time is ticking as of now.

Ms Smallwood: Good morning to you all, then, and welcome to Vancouver. On behalf of the B.C. Endangered Species Coalition I'd like to express my appreciation to the members of the standing committee for holding a B.C. hearing on this bill and for hearing submissions from British Columbians.

First I'd like to give you a quick introduction as to who we are and what we're doing.

The goal of the coalition is to obtain a B.C. endangered species act that protects endangered and threatened species and their habitat. However, we believe effective protection of species at risk in Canada requires strong legislation at both levels of government, as per the national accord for the protection of species at risk. Hence our involvement in this hearing today.

I'll be focusing, particularly given time constraints, on four topics: the B.C. picture, economic development in endangered species legislation, the listing process, and citizen suits.

First is the B.C. picture. B.C. Ministry of Environment statistics show there are now 68 species of animals and 224 species of plants listed as threatened or endangered in B.C. An additional 451 species are classified as vulnerable, and the numbers are increasing. Several species are already extinct and others have been extirpated from the province.

Legal protection for species at risk in B.C. is, to put it mildly, woefully inadequate. The limited provision for endangered and threatened species under B.C.'s Wildlife Act fails to provide any real protection. As evidence of this, only four species have been listed under the act and the act has only been used once to designate critical habitat.

As currently drafted, Bill C-65 is going to do little to address this situation. The bill is restricted to species at risk on federal lands - and that covers only 1.1% of lands in B.C. - aquatic species, and birds listed under the Migratory Birds Convention Act. There is no protection for inter- or intra-provincial species at risk and no legal requirement to protect critical habitat - a key deficiency, from the coalition's perspective.

As David Boyd outlines in detail in his written submission, the federal government has extensive constitutional jurisdiction to enact endangered species legislation. While the provinces also have constitutional authority, we believe the federal government should legislate to the full extent of its jurisdiction. Most importantly, especially for British Columbia, it should set the example for the provinces to follow, and it should be a high standard. Unfortunately, for the reasons we will discuss today, we believe the bill fails to do this in several key areas.

I'd like to focus briefly, then, on the issue of endangered species legislation and economic development.

Critics of endangered species legislation frequently argue that this type of legislation is anti-development and impedes economic growth. No doubt you've heard this argument before and I suspect you'll hear it again today.

In fact, although better known for the handful of projects it has stopped, the experience with the U.S. Endangered Species Act has shown that the overwhelming majority of projects have proceeded under the act.

I've included with your materials a copy of an extract of the U.S. General Accounting Office report that documents what I'm about to outline. A similar report was issued by the World Wildlife Fund, and I apologize that I have been unable to get hold of a copy of that report. I will endeavour to do so by the end of the week and send it to Mr. Radford.

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This report focuses on the consultation process under section 7 of the U.S. act. Basically this process is to ensure that any project where there is federal involvement proceeds through a consultation process. The purpose of the section is to prevent harm to species at risk or their habitat by actions of the federal government.

Both reports, in a review of a five-year period of consultations under the U.S. act, found the same results, and the results are quite dramatic.

Firstly, they found that almost 90% of all consultations under the act were disposed of informally. That is, the development project proceeded.

Secondly, they found that over 90% of those that proceeded to formal consultation resulted in findings of no jeopardy.

Finally, of those that were conducted formally and found potential jeopardy, nearly 90% arrived at a reasonable and prudent alternative.

To translate this into number terms, we've found that over a five-year period, only 18 projects were terminated. This is less than 1% of formal consultations and less than 0.02% of consultations overall. In other words, over 99% of projects referred to the U.S. Fish and Wildlife Service because of potential impacts on listed species or critical habitats were able to proceed after the advance review consultation.

So I ask you, when questioned or hit with the arguments that this bill will kill development, to have a very careful look at the report I've given you.

In summary, the experience in the U.S. has shown that endangered species legislation has not significantly impeded development activity. Instead, the overwhelming majority of projects have proceeded.

The U.S. consultation, or advance review process, as it's sometimes known, has proved central to the resolution of conflicts between development projects and endangered or threatened species. For this reason, the coalition is advocating an advance review of all actions that may affect a listed species or its habitat.

The specific amendment we suggest is to the law list regulations under the Canadian Environmental Assessment Act, and I've detailed that on page 12 of my submission.

Moving briefly, then, to the listing process, as you are no doubt aware, listing is the keystone of endangered species protection. Quite simply, it's the prerequisite to protection. If a species isn't listed, it receives no conscious decision on its survival.

Accordingly, the coalition is calling upon this committee to ensure that the listing process, consistent with the preventative purpose in clause 5, is an open and inclusive process, is completed in a timely manner, and is based on the best available scientific information.

Stewart Elgie from the Sierra Legal Defence Fund has raised a variety of concerns about the listing process and has detailed amendments to wording in the bill in his clause-by-clause review, which will be submitted to this committee. We endorse those amendments.

I'd like to focus on one issue that is a primary concern he addresses and that we wish to address also. It is the role of COSEWIC and in particular clause 30 of the bill.

The coalition is pleased that COSEWIC has been given a legislative mandate for its activities. We also support the fact that its functions are to be based on the best available science. However, we strongly object to the fact that COSEWIC's role is advisory only. The coalition believes scientists should have the ultimate say in which species are listed. As you're aware, under clause 30 that's not the process. COSEWIC's role is advisory only.

This process, under clause 30 as currently drafted, is a major step backwards from the current system. It is at odds with the 1995 legislative proposal and also the recommendation of the federal task force. Worse, the approach adopted is an inherently pessimistic one. It's as though you've given up at the outset.

As I said, the U.S. experience has shown that you can very successfully resolve conflicts between development projects and species protection. Political considerations can still be factored in to the equation, but they come in at the stage of how you decide to protect the species, not whether you should list it in the first place.

Accordingly, we recommend that clause 30 be amended to provide that the minister - and note I've said ``minister'' there, not ``cabinet'' - shall make regulations establishing and amending the list and that the list shall include all of COSEWIC's designations and classifications.

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Moving finally, then, to citizen suits, or the endangered species protection action in clause 60 of the bill, this committee previously recognized the merits of citizen suit provisions in its review of the Canadian Environmental Protection Act. On page 16 I quote from a review conducted by the committee.

We strongly support the inclusion of a citizen suit provision in the Canada Endangered Species Protection Act. However, for reasons I'm about to outline, we believe the preconditions to commencing a citizen suit under clause 60 are too prohibitive and will effectively preclude citizen suits in most instances.

Under clause 60 you have to overcome two hurdles to commencing an action. Firstly, you must have first applied for an investigation under clause 56, and secondly, a court must find that the minister's response to that investigation either was unreasonable or involved unreasonable delay.

As I'm sure you're aware, clause 60 is modelled on section 84 of the Ontario Environmental Bill of Rights. Under that section the same two prerequisites apply: namely, an investigation and a finding of unreasonable delay or unreasonable response. I'd like to reiterate that we believe these two preconditions to commencing a citizen suit under clause 60 will defeat the purpose of the clause, and I'd like to explain why.

Experience with the Ontario procedure certainly seems to confirm the view that this type of citizen suit provision precludes citizen action. To date there have been no citizen suits under the Ontario Environmental Bill of Rights. I'd like to stress that the same has happened under the Northwest Territories Environmental Rights Act and the Yukon Environment Act.

The picture in Ontario, however, is very different in that the lack of citizen suits is not due to lack of public interest in environmental enforcement. As of September 30, 1996, the Ontario environmental commissioner's office had received more than 28 complete applications for investigation and more than 345 applications for review.

Disturbingly, the in-house counsel to the commissioner has noted that one of the reasons given for the fact that no one has used Ontario's civil suit provision is that fewer than 20 investigations and screenings have been completed to date. In other words, ``We're terribly sorry. We're still processing your investigation application, so you're not really eligible to commence a citizen suit.'' This is disturbing news indeed and reinforces concerns about using the Ontario citizen suit provision as a model for this bill.

The coalition believes if the government and this standing committee, as it's previously indicated, are really committed to facilitating greater public participation and compliance with federal environmental laws, there should be no requirement to conduct an investigation prior to commencing a citizen suit.

The Canadian experience with citizen suit provisions has shown that these provisions are rarely used. No doubt you will hear this afternoon that this type of provision will lead to floodgates of litigation in the courts. I ask you to get them to substantiate that claim, both in the U.S. and more particularly in Canada, because Canada's track record on this - and we have several years of experience in several different provinces and territories - shows absolutely that this has not been the case.

The recommended action we suggest to this committee is that clause 60 be amended so any person may bring an endangered species protection action against any person who has committed or will imminently commit an offence as defined in clause 77. In other words, we ask that there be no preconditions of commencing an investigation and a court finding an unreasonable response or unreasonable delay.

In closing, I would like once again to express my appreciation to the standing committee for this opportunity to provide comments on Bill C-65. British Columbia is the province that led to the development of this legislation. The initiative came from B.C. and the province with the strongest level of support overall in the 1995 Angus Reid poll was British Columbia, at 96% in support. As you're aware, this contrasts with a Canadian national average of 94%.

The B.C. Endangered Species Coalition believes that as per the national accord for the protection of species at risk, both the federal and provincial governments need to pass complementary legislation that, as per the wording of the accord, ``provides effective protection of species at risk throughout Canada''.

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I request that this committee support the amendments that will strengthen Bill C-65, especially those related to habitat protection, and, most importantly, set the standard for the provinces to follow. B.C. needs the standard to be set by the federal government.

As members of the standing committee, you have before you this historic opportunity to ensure, with the Canada Endangered Species Protection Act, that Canadians have an enduring legacy: our species and their habitats. Please use it.

Thank you very much.

The Chairman: Thank you, Ms Smallwood. You're right on time; it couldn't be better. I appreciate that.

Ms Smallwood: [Inaudible - Editor].

The Chairman: Because of a delay in delivery by the company in charge of parcels and the like, name tags and other material haven't arrived, so perhaps I will invite each member, by way of a brief round-table procedure, to indicate their names to the witnesses and the public in this room. Having done that, we will start with Mr. Forseth.

Would you like to introduce your name and riding?

Mr. Forseth (New Westminster - Burnaby): My name is Paul Forseth. I'm the member of Parliament for New Westminister - Burnaby.

Mrs. Jennings (Mission - Coquitlam): I'm Daphne Jennings, the member of Parliament for Mission - Coquitlam.

Mr. Adams (Peterborough): I'm Peter Adams. I'm the MP for Peterborough, and I've been on this committee since the beginning of the CEPA hearings.

Mr. Knutson (Elgin - Norfolk): My name is Gar Knutson. I'm the member of Parliament for Elgin - Norfolk, which is on Lake Erie in southwestern Ontario.

Mr. Steckle (Huron - Bruce): I'm Paul Steckle, the member of Parliament for the riding of Huron - Bruce, which is a rural riding in southwestern Ontario, right on the shores of Lake Huron.

Mrs. Kraft Sloan (York - Simcoe): My name is Karen Kraft Sloan. I'm the member of Parliament for York - Simcoe. My riding has recently come into national prominence, with 300 people caught on an ice floe. I was trying to deal with my staff on this particular issue. It's an interesting reaction of nature.

I'm also parliamentary secretary to the Minister of the Environment.

Mrs. Payne (St. John's West): I'm Jean Payne, member of Parliament for St. John's, Newfoundland.

Mr. Tom Curran (Committee Researcher): My name is Tom Curran. I'm with the research branch of the Library of Parliament. I'm part of the research arm of the committee.

I'll introduce my colleague, Kristin Douglas, who's sitting at the side table working very busily right now. She's also with the research branch of the Library of Parliament.

The Chairman: And you all know Normand Radford, our clerk.

I'm Charles Caccia from the Davenport riding in the great city of Toronto.

We will make our rounds of some five minutes each so we can come back again.

Will you please start, Mr. Forseth?

Mr. Forseth: Thank you very much.

I'd like to hear some general comments from you about the impression of the bill.

The Chairman: Just a moment. I thought Ms Smallwood was speaking for the entire group.

Ms Smallwood: No, submissions are being made by Linda and David as well.

The Chairman: I apologize. We'd better hear them all and then we'll have the round of questions.

Ms Nowlan, would you like to proceed?

Ms Linda Nowlan (Staff Counsel, West Coast Environmental Law Association): Yes. Thank you very much, Mr. Caccia and committee members.

Welcome to Vancouver. Bonjour. We're glad you came out here. We're very happy that the committee decided to have these hearings in Vancouver and hear from British Columbians about their concerns on this bill, which is supported very highly, as Kate indicated, in our province.

I'd like to focus on four clauses of the bill. I may only get to two of them in any detail, but four of them are included in my brief.

The four subjects I've dealt with in my brief are habitat protection, specifically clause 32 of the bill; the exemptions from the application of the act in clause 36; the advance review process in clause 49, which you've already heard about from Kate; and the incentives for private landowners and for other levels of government to comply with clauses 7 and 8 of the bill.

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In the opinion of the West Coast Environmental Law Association, which I represent, and the B.C. Endangered Species Coalition, the most important part of this bill is habitat protection. Habitat loss is the single most important factor affecting species loss in B.C. To have an effective endangered species protection act, you must have effective habitat protection. It is this part of the bill that we feel most needs improvement.

I'll start at page 5 of my brief, with one statistic about the total amount of land in the province of British Columbia that is specifically protected for wildlife management purposes.

We're very lucky in our province. We have recently had a large amount of land made into protected areas, increasing the amount of land specifically protected in the province. But in terms of land devoted to wildlife management, it is less than 0.01% of our province's land base, a figure that may surprise you. The total amount of land in this province specifically protected for wildlife management by both levels of government, federal and provincial, is less than 0.01%. So you can see we have a long way to go towards putting land aside specifically for wildlife management.

I'd also like you to keep this figure in mind when you hear from industry representatives, specifically forest industry representatives, this afternoon. Right now there really isn't a lot of land set aside for wildlife management in the province.

The same goes for marine areas, which is an area specifically under federal jurisdiction, as of course you know. Again, less than 0.01% of the marine areas in the province have been protected. I know both levels of government realize the need to increase the amount of marine protected areas in the province, for wildlife species preservation as well as maintenance of biodiversity and other reasons.

Habitat protection is covered in several clauses of Bill C-65. The first I'll deal with is clause 38, which is the requirement for the minister to prepare recovery plans for species listed as endangered, threatened, or vulnerable. This is a very positive feature of the bill, and we're very happy that this clause of the bill was included.

The subclauses of the requirement to prepare recovery plans are also commendable. Identification of critical habitat, providing a description of measures needed to reduce or eliminate threats to the survival of species, and the duty to consult, publish the plan, and prepare an implementation report are all very good requirements. We are concerned, however, that these recovery plans and implementation reports will not be enough to protect habitat.

There's no specific duty in the bill right now for the minister or the government to implement the recovery plans. They have to prepare an implementation report, but that's not the same as a duty to actually go ahead with implementation. Of course, believing in the good faith of the government, we assume that if the government goes ahead and prepares an implementation report for a recovery plan, it will proceed with the necessary steps to ensure the recovery plan is implemented, but it would be better if this were specifically set out in the law. We would recommend that there be an addition to this clause of the bill requiring the government to implement the recovery plan.

However, the most important defect in the bill is the one I'll talk about next, which is set out at page 7 and following of my brief.

The easiest way to protect habitat is to prohibit anyone from disturbing, damaging, or destroying the critical habitat of a listed species. But the prohibition clause - clause 32 - does not take this clear step to protect habitat.

The habitat protection provision - clause 32 - says ``No person shall damage or destroy the residence of an individual of a listed endangered or threatened species.'' This provision is simply not strong enough to protect habitat. It won't do the job.

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The term ``residence'' is far too restrictive to describe habitat needs of most species - in fact, I would say all species. Species are not limited to a specific nest or den. It would be far preferable, in our submission, to replace the term ``residence'' with the term ``critical habitat'' so that no one shall damage, destroy or disturb the critical habitat of an individual of a listed species.

The term ``critical habitat'' is referred to a number of times in the bill - it's defined in the bill - and we submit that to protect critical habitat you must prohibit damage or destruction of critical habitat. It's not enough to simply focus on a nest or a den. It won't do the job. That's the key change we're asking this committee to recommend.

I've given a couple of examples on page 8 of the brief about species in our province for which the federal government has clear and exclusive jurisdiction. I agree with the submissions of my colleagues that the federal government has more extensive jurisdiction to protect endangered species than is recognized in this bill, but focusing solely on those types of species about which there is no argument, which includes migratory bird species, marine aquatic species.... There are some examples of species already at risk in our province for which this bill will do nothing, and since these species are under federal, not provincial, jurisdiction, having a new provincial endangered species act won't solve the problem either.

What we need to do to effectively protect endangered or threatened species under federal jurisdiction is to strengthen the habitat provisions of this bill. For example, the north Pacific right whale is recognized as a species in danger whose population is declining. This bill won't protect that species. It's a federal responsibility; marine mammals are protected by federal law. The Fisheries Act has marine mammal regulations that prohibit disturbing marine mammals, but there's nothing for habitat protection in those regulations, and due to the vagaries of fisheries law, the very strong fish habitat protection in the Fisheries Act doesn't apply to these species. That's dealt with in footnote 17 at page 8.

So you can see that for marine aquatic species this bill doesn't go far enough to protect their habitat, and we submit that if you're not going to protect their habitat, you won't effectively be protecting them.

The same is true for migratory bird species. Only the federal government has the power to protect these types of birds, yet the bill is limited to birds listed under the Migratory Birds Convention Act - and those are not all migratory birds. The Migratory Birds Convention Act also protects the nest, eggs and shelters of the birds, but again, not the broader range of habitat needed for survival of these species. If you want to adequately and effectively protect the habitat of endangered or threatened or vulnerable migratory birds, the habitat protection provisions of the bill must be strengthened. The provincial government can't do it. We're asking you to take this step.

The part on habitat protection, which we submit requires amendment, is also further weakened by the exemption provision, clause 36, which lists the general exceptions or exemptions from the bill, and in our submission these exemptions are far too broad.

We'd like to refer to the report of the federal task force on endangered species conservation. I've provided copies of this report to the clerk. I understand that this report has been referred to a number of times in the hearings, and we've brought copies of the report. This was a multi-stakeholder task force, as I'm sure you're aware, including representatives from industry groups such as the Canadian Association of Petroleum Producers and the Canadian Pulp and Paper Association. These industry groups, as well as environmental groups and others, produced a consensus report. Not all the recommendations in the report are consensus, but most of them are.

In the part on exemptions, which is at page 14 of the task force report, the task force recommends that there must be preconditions before any exemption is granted. Those preconditions are that all reasonable alternatives must first be considered and explored, and if adversary impacts on the species or its habitat are allowed, they must be approved and justified in writing by the Minister of the Environment. Also, an exemption must not imperil the survival of the species. That's at page 14 of the report of the Task Force on Endangered Species Conservation.

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Despite this consensus recommendation from the federal task force, Bill C-65 does not include these preconditions for the application of the exemptions. The most crucial parts of the bill simply do not apply to persons engaging in any of the authorized activities. I won't go into detail about the wording, but we're recommending that in order to get around this problem a permit should be required before any exemption to the act is granted. This would require the minister and the government to fully consider whether the exemption should be granted. Before an exemption is granted, we recommend that the preconditions the task force recommends be also followed, that the survival of the species not be imperilled by the granting of an exemption from the act and that the minister provide reasons in writing why an exemption will be granted.

I've given a few examples of why these exemptions are too broad, again using B.C. examples, at pages 10 and 11 of the brief. Maybe I'll just refer to one.

There's an exemption for activities in accordance with a number of aboriginal land claims and treaty settlement agreements. We submit that this exemption is far too broad, that regulatory measures to protect wildlife in any treaty, land claim agreement, or self-government or co-management agreement may not specifically deal with endangered species. We're simply saying that any activity conducted in accordance with any one of those forms of agreement that can be exempt from the application of the act may not protect endangered species in our province. Again, we recommend that these exemptions be considerably narrowed so we can ensure that species are protected.

Kate has already dealt with advance review, so I won't repeat what she has said. We also agree that the easiest way to provide an effective advance review process would be to put the two relevant clauses of this bill as law list triggers under the Canadian Environmental Assessment Act.

Finally, on the incentives portion at page 15 and following, we believe it's important for effective endangered species protection to provide carrots, positive incentives, as well as sticks or prohibitions such as those that are in the bill. The draft act has some good starting points in subclause 7(2), on conservation agreements, and clause 8, on funding agreements. Both of these are very positive incentives that can be used to encourage people to protect endangered species.

We would also recommend that other types of incentives be looked at. There's a number of other types of positive incentives that the government could consider, whether under this bill or under other federal legislation such as the Income Tax Act, and a number of examples are contained in the brief.

We welcome Bill C-65 and see it as a very positive step towards more effective protection for endangered and threatened species in Canada and in our province. However, we don't believe it currently will do the job as drafted. Specifically, unless the habitat protection provisions are amended, we don't think habitat will be protected and therefore we don't believe species will be adequately protected.

Thank you.

The Chairman: Thank you. Very well done.

Mr. Boyd, it's up to you now. Please start.

Mr. David Boyd (Staff Lawyer, Sierra Legal Defence Fund): Thank you. Good morning and welcome to Vancouver.

I'd like to start off with three general comments before I look at specific provisions of the bill. First, I'd like to bring to your attention a quote from the Brundtland commission of 1987, which was the United Nations World Commission on Environment and Development. In that report they stated: ``There is still time to save species and their ecosystems. Our failure to do so will not be forgiven by future generations.'' I think something to keep in the forefront of our minds when we're looking at Bill C-65 is that this piece of legislation can be seen very much as an investment in the future.

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Two years ago I gave a workshop at an environmental conference for youth in British Columbia. Five or six different workshops were scheduled for the afternoon. All of the young persons signed up for the workshop on endangered species. It was at that point that it was really driven home to me how important this act is for protecting Canada's natural heritage, not only for us and for wildlife's sake itself but also for the sake of future generations.

The second general comment I have is that I also believe that Bill C-65, if improved, can very much contribute to national unity in Canada. Public opinion polls show that 94% of Canadians support federal leadership and federal legislation to protect endangered species. I'm not aware of another issue in Canada where there's that degree of public consensus. I think Canadians are very much drawn together by things such as our national parks and by protecting our incredible national natural heritage.

My third general comment is less positive. It deals more specifically with Bill C-65 as currently drafted. With Bill C-65, I believe Canadians are in a sense being sold a bill of goods. It gives the impression of federal action to protect endangered species but it is more gloss than substance.

I was particularly concerned when on October 31 of last year the press releases came out and there was a great to-do about this bill. I would like to quote three lines from the news release from Environment Canada:

Habitat that is critical to the survival of a species is protected by this Act. The moment an endangered species is officially listed, there is an automatic prohibition on activities causing damage or destruction to habitat that is critical to its survival.

Frankly, that is not true. It should be true, and I urge this committee to make it true. Habitat that is critical to the survival of the species must be protected in order for Bill C-65 to be effective.

Included in that press package was this summary document, which is basically a plain language explanation of the act. There are photographs in here of a number of species, such as the burrowing owl, the Vancouver Island marmot and the swift fox, which are on the Canadian endangered species list but will not benefit from any of the protections of Bill C-65, as it is currently written, simply because they're neither aquatic species nor migratory birds under the Migratory Birds Convention Act, and neither are they found on federal land. Clearly there are problems with the scope of this bill. That's one of the main issues I'll be addressing in my comments.

Before I get into the issues I want to focus on I have two preliminary comments on sections of the act. The first is on the definition of wildlife species. I've spoken with a number of colleagues who are ecologists and biologists. They tell me it's imperative that the definition of wildlife species be amended to add the words ``genetically distinct'' as well as ``geographically distinct''.

I have a visual aid here that will drive home this point. This is a poster of a Kermode bear, which is actually a black bear, contrary to its appearance. It is found in northwestern British Columbia. As wildlife species is currently defined in Bill C-65, the Kermode bear would not be eligible for protection. So I urge you to consider that as a change to the definition of wildlife species.

The second preliminary comment I have has to do with the listing process. As you all know, there is currently a list of endangered species. I would urge you to amend Bill C-65 to add the existing list of endangered and threatened species in Canada as a schedule to Bill C-65. This ensures that at the moment the bill comes into force there is protection for the species that are already threatened and endangered.

We divided up the various components of the act, and I was given responsibility for addressing the basic question of the scope of this act. As it is currently drafted, this act will apply to only 1.1% of British Columbia. That's the percentage of British Columbia that is actually federal land.

I ask you, what about species living on the other 98.9% of this province? They're not protected by Bill C-65. As a British Columbian and a Canadian, I find this disturbing.

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We all know that when the founding fathers drafted our Constitution back in 1867 they didn't look specifically at the environment as a concern, as something to be allocated to either federal or provincial governments. As a result, there's considerable overlapping of jurisdiction in environmental issues.

The Chairman: But it included water, Mr. Boyd, and water includes a lot of environmental issues. So they were quite gifted in their foresight.

Mr. Boyd: I would agree with you on that, Mr. Caccia. I'm certainly pleased that this act goes to the extent it does in protecting aquatic species. My comment about the 98% of British Columbia that's not covered obviously deals with terrestrial species.

There are ways of dealing with that overlap, which this act actually uses in one place, clause 3, where there is an equivalency provision put into place for the Northwest Territories and the Yukon. It creates a safety net and ensures that the federal government will protect species but also gives those territories the option of taking over responsibility. I think a similar equivalency provision could certainly be used in conjunction with the provinces as well. That's what's done under the Canadian Environmental Protection Act.

So our basic recommendation is that clause 3 be amended in a way that covers not simply federal lands but all of Canada, creating a safety net for endangered species and providing an equivalency provision so that if and when the provinces pass endangered species legislation, the provincial law would then apply. So species are protected no matter where they live and the provinces, if they passed legislation, don't have any federal impact on their jurisdiction.

I would also add that Canada's leading constitutional academic, Professor Dale Gibson, of the University of Alberta, has written a legal opinion on the government's constitutional power to protect endangered species. She concluded that:

The totality of the federal powers are so sweeping, in my opinion, as to leave few, if any, gaps in the ability of the Government of Canada to act for the protection of all endandered species in Canada.

When one considers that there are 75,000-plus species of wildlife in Canada and that only60 are currently threatened or endangered, then one can see that this is a fairly discrete and limited area for the federal government to legislate in.

One final point is that section 446 of the Canadian Criminal Code prohibits cruelty to individual animals. It seems to me that's directly analogous. If the federal government can prohibit harm to an individual animal, wherever it may occur, then surely the federal government can prohibit acts that harm endangered species, or conceivably the extinction of a species.

The final point I would make in terms of the scope of the act deals with the question of enforcement. Only the federal government can be held accountable for enforcement of environmental legislation, through the North American Commission on Environmental Co-operation. That enables citizens to ensure that Canada is diligent in enforcing its environmental laws.

The next point I would like to deal with is the issue of cross-border species, clause 33 of Bill C-65. In a sense, this is related to the scope of the act. In our submission this is a critical clause in the act. We believe the federal government needs to take strong measures to protect transboundary species, but we believe clause 33 should be strengthened in several ways. Indeed, I'd also note that the multi-stakeholder endangered species task force recommended that Bill C-65 should protect transboundary species.

First of all, the protection of transboundary species should be mandatory and not discretionary. There's no reason why some provisions of the bill should apply automatically to endangered species and other endangered species not be covered automatically.

Second, we believe species that cross provincial borders as well as federal borders should be protected. Certainly there's legal precedent for that, in particular a case known as Interprovincial Co-operatives Ltd. et al. v. The Queen, a decision of the Supreme Court of Canada.

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Third, clause 33 needs to be amended so that the critical habitat of transboundary species be protected. As it's currently drafted, clause 33 does not deal with habitat protection.

Four, clause 33 is the only place where the words ``wilfully'' and ``knowingly'' are found in this bill. Those words should be deleted from this clause. They are anomalous and they impose a different standard than is found elsewhere in the bill, a standard that will make clause 33 more difficult for the government to enforce.

Finally, there's no reason clause 33 should be limited to animal species. It should also apply to plant species. There are plant species that range across international and provincial borders as well.

There are three points that are relevant to clauses 31, 32 and 33. The word ``disturbed'' should be added to each of those clauses, because there are certainly acts that disturb endangered species and have equally pernicious effects that cause direct harm to those species.

Second, those clauses should all address ``attempts'' to cause harm to species. I say that because, as it's as currently worded, if someone takes a gun and shoots at an endangered species but misses, they haven't committed an offence under the act. Clearly that's something that should be rectified.

Finally, clauses 31, 32 and 33, which are really the meat of the bill, should also be amended to apply to extirpated species. That may seem strange at first blush, but because there are reintroduction programs going on with species such as the swift fox, certainly as a species is being reintroduced we would want protection to apply there.

The final comment on the scope of the act and on its application has to do with the issue of migratory birds. As it's currently worded, it only covers migratory birds listed under the Migratory Birds Convention Act. In our submission that reference should be deleted. This act should apply to all migratory birds. The Migratory Birds Convention Act does not cover a number of birds, including eagles, owls, falcons and hawks, some of which are endangered species in Canada. It would be simpler and more straightforward for the act to simply apply to migratory birds and their habitat.

The other major issue I want to address deals with recovery plans and the recovery planning process. Recovery is really what this act is all about. We don't want endangered species to languish in the emergency ward for eternity. Just as medical science seeks to do more than merely prevent death, and seeks to promote health, this act goes beyond preventing extinction to promoting health and recovery for endangered species.

The fundamental flaw of Bill C-65 in the context of recovery plans is that although a plan must be developed - and Linda actually alluded to this earlier - within one or two years for endangered and threatened species respectively, there's no obligation on the government to implement those recovery plans. If a species merits being listed as endangered or threatened and a recovery plan is prepared, then surely it must be put into action. Otherwise, the entire recovery planning process becomes an exercise in futility.

I would like to make a couple of comments about the Australian Endangered Species Protection Act, which was passed by the federal Australian government in 1992. In terms of recovery planning, section 31 of the Australian act says that the government must prepare and implement recovery plans. That would certainly be an improvement to Bill C-65.

The Australian act also requires that

The recovery plan must provide for the research and management actions necessary to stop the decline of, and support the recovery of, the species or community so that its chances of long-term survival in nature are maximized.

I think it would be helpful to set a measurable standard like that in Bill C-65 so that there's a target for what recovery plans are to achieve.

The third component of the Australian Endangered Species Protection Act that would be a useful addition to Bill C-65 is that the Australian act prohibits government agencies and departments from taking any actions that contravene a recovery plan. I think that speaks for itself.

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I would also like to make several comments about public participation under Bill C-65. The first is on clause 40 and the public's opportunity to participate in the recovery planning process. As it stands, the recovery plan is drafted and completed and then the public is given an opportunity to comment on the completed recovery plan. It would be preferable, certainly from our perspective, for the public to have a chance to have input before the completion of the recovery plan.

Kate dealt with the question of citizen suits. I won't repeat that.

One issue that hasn't been brought to my attention before but I think you may wish to address is something they've had problems with in the U.S., which is publishing information about an endangered species, as the bill requires to be done. There are some exceptional cases where the publication of information about an endangered species may in fact imperil that species. For example, if publication of a rare butterfly's habitat must be published under the proposed act, that may cause unscrupulous butterfly collectors to go to that specific location. So you may wish to consider putting an exception into the bill so in cases where publication of information about a species would actually cause the possibility of harm to a species that information would not have to be published.

The penalty provisions in Bill C-65 are mysterious to me. I'm not sure why the penalty provisions are weaker than in other federal environmental laws, such as the Federal Fisheries Act and the Canadian Environmental Protection Act. We would simply recommend that the maximum fines under Bill C-65 be increased to be consistent with those other pieces of federal legislation, which means maximum fines of at least $300,000 for summary conviction offences and $1 million for indictable offences.

I would just close my submissions with a line from -

The Chairman: I'm sorry, Mr. Boyd, you have had your full time. You may want to insert this item by way of an answer to a question.

Mr. Boyd: Okay.

The Chairman: Mr. Forseth.

Mr. Forseth: Thank you for coming.

I would like you to describe in a general sense.... Certainly the bill has its technical aspects and it's going to be left to the professionals to administer it, but for the ongoing success of preserving endangered species we really need public cooperation, the cooperation of those who really don't know much beyond the general euphemism ``well, you know, I don't want any endangered species to go extinct''. That's about the level of their sophistication. But when it comes down to how maybe this mill is going to have to be shut down in response to that, all of a sudden that original emotion begins to disappear.

So I want any of you to comment about how to get the general public cooperation so they would not see these types of laws and the commitment that the province is going to pass similar legislation as a threat or the big hand of government, or an opportunity to disturb the local economic activity by accident, or an opportunity for an economic competitor to use the legislation for a perverse purpose, to put someone else out of business or to delay their development plans. What are some of the ways we can turn this around so people can buy in and support the legislation and there are various relief valves for the exceptional case? Because the arguments are always made for the unusual exception.

Mr. Boyd: I'll respond in general terms, Paul, then Linda has more specific comments.

The thing that should be kept foremost in mind is that in Canada we're actually in a fairly good position. We do have only sixty species that are listed as threatened and endangered, and by their very nature they are rare. So conflicts with those species, if we take strong protective measures at this point, are likely not to be to the same extent as they've had problems in the United States, for example, where they are dealing with over 800 threatened and endangered species.

Ms Nowlan: I'll follow up on that briefly. Polling data shows that actually about 90% of rural residents would be willing to leave some of their land undisturbed for the purpose of protecting endangered species. That's quite a high percentage, again showing the level of public support for this type of bill.

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I mention briefly some of the incentives that could be considered by the government. Some of the incentives are there in this draft act, and they should be made use of to their full extent. This includes the conservation agreements in subclause 7(2), and probably more to the point, the funding agreements in clause 8. This allows the government to enter into funding agreements with individuals as well as other organizations for the purpose of endangered species protection.

There are examples of similar programs that already exist in the province. For example, in B.C. we have the habitat conservation trust fund, a provincial program. Its revenues come from the sale of hunting licences and wildlife stamps, things of that nature, so that the fees paid by people involved in wildlife-related activities to engage in some of those activities go right back into habitat conservation.

I see no reason why those provincial types of programs couldn't be linked with similar federal programs, such as the already existing Wildlife Habitat Canada, which provides funds for endangered species protection, so that broader use could be made of these existing funds - and perhaps they could be supplemented - to encourage private landowners as well as others to engage in species protection.

The last thing I'll mention is that in the U.S. there's been considerable success with the habitat conservation plans under which landowners who find that they have an endangered or threatened species on part of their land are allowed to actually harm or destroy - as little as possible - some of the species if they can show that they're maximizing the habitat of the species in the rest of the land. So incidental harm to some members of the species is allowed and they won't be prosecuted for violating the act, but they have to put in place a comprehensive habitat conservation plan that will protect the species over the rest of their land. There's been a lot of success with that according to the academic literature.

Ms Smallwood: I'd like to reinforce that if you want public support for this type of legislation what you need to do is keep the public involved. There are some really good provisions in this bill that allow that.

One example is the citizen participation provision in terms of listing, as well as the public registry. The key thing, though, which I'm going to come back to, is the advance review process. An advance review isn't just necessarily the federal government department and United States Fish and Wildlife Service; it can include directly affected persons. So before you get to the crunch decision that the dam is to go ahead or that the road is to be built, at an informal consultation process you get the people around the table who are going to be involved and you sort out how to deal with the situation. As the U.S. experience showed, if you have that process more than 90% of the consultations are resolved informally. So allow people to come to the table to put their view in terms of what they feel about the project and how it will impact them.

Finally, in terms of ongoing public support for the bill, I'd like to reinforce that the listing process needs to be credible. As Linda said, this is something the multi-stakeholders task force wanted. To get support for the bill you need to have a credible listing process. It should be scientifically based, not political.

Mr. Forseth: Thank you.

The Chairman: Mr. Steckle, please.

Mr. Steckle: I want to thank the participants this morning for coming forward. I don't doubt one moment your sincerity in the presentations this morning.

As a person bringing to this committee a rural perspective - I am a landowner in rural Ontario, not only in southern Ontario but in northern Ontario - I share some of the concerns you have. But I also share the concerns the other side of this equation has in terms of how far we go and how inhibitive we become in terms of the kind of legislation we propose and bring forward in terms of ongoing development in, for example, the forestry industry.

Coming at it from the perspective of agriculture, I can tell you that there are many people out there who share the vision that we need to protect. I know many farmers who would work around a killdeer nest. It's not an endangered species, but they would work around the nest to provide a safe sanctuary for the nesting process.

Kate, you suggested that under clause 60 we should be allowing any citizen to launch a challenge. I guess I'll ask you first. I'll ask the three questions, and then one to each of you.

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How far can we go in allowing any citizen to come forward in terms of their vision and their view of an endangered species being in that situation, with no limits?

Linda, you mentioned that under the habitat protection.... How far would you go in determining what is habitat and what is residency? How far do you go on that particular issue? We know that could find no bounds.

David, you mentioned that 94% of Canadians support the view of protecting endangered species. I don't question that, but do those same 94% of people support the view that they also ought to support that cause financially? We know today there are many causes and agencies that do exactly that. Ducks Unlimited provides millions of dollars for the protection and enhancement of habitat. That is primarily their focus. I think we need to work together....

And then the communication. I was supporting pretty much what you were saying until you suggested perhaps the publication of information. And you used the butterfly as an example of where this may be a negative rather than a positive. I want you to expand on that a little, because I think there's a view by the general public.... Perhaps that negative 4% is correct, but are we as willing...? Because we, the government, who provide, and will provide, the impetus to this legislation, are going to be responsible for bringing forth not only the legislation but the enforcement, and in those cases where there's compensation, we will be responsible for defining the means of compensation. It's a broad mandate we have.

Help us find the solutions to those questions.

Ms Smallwood: Perhaps I can step in to address your concern about the limits on endangered species protection action. Several of you, I understand, were on the standing committee when it dealt with CEPA. This was a concern the committee had specifically. In fact, they said they wanted to ensure there were some safeguards on this type of provision.

There are several things I would like to focus on in answering that. I would like to reinforce that I believe the limits are there without your having to put them in the bill. The reason the limits are there is inherent in the court process. I've documented this in detail on pages 19 and 20 of my submission.

You need to be aware that the court process itself has inherent limitations on bringing an action. The primary one is a requirement to establish what's known as a prima facie case, which means if you're thinking of the environmental crackpot who is going to come forward and bring an unsubstantiated case, the harassing plaintive model, the court has an inherent process to remove that person at the outset. For a start, they have an inherent ability to dismiss frivolous or vexatious litigants. They also have the requirement to establish the prima facie case. In other words, if you haven't the gist of a decent discussion before the court, you're out the door before we get anywhere.

They also have other limits they impose, such as notice requirements that will allow the defendant, even before court action, to respond and say, kick this out, it makes no sense. They have what's known as a bonding requirement, a security deposit, or the undertaking to pay damages. That's also addressed in the bill.

You also have this history, as I indicated in my submission, of how these provisions have been used. There simply have not been the floods people have talked about.

An academic review, which I've cited in my submission, looks at just this concern, that you're going to have the frivolous or vexatious environmental plaintive knocking on the door, keeping the courts busy. I've already answered that in terms of the inherent ability of the courts to kick people out. What they've also done in the U.S., even in terms of the Endangered Species Act in the United States, is imposed their own standing requirements. So even though there is no prescribed requirement in the legislation about an interest in the proceedings, for example, if the courts have any discomfort with the way the plaintive is coming forward, even where they feel there's a prima facie case, inherently in their own process they will impose that.

If we refer, then, to the academic review of citizen suits provisions in the U.S. and also in Canada, the academic who did this review said the single most frequently heard argument in opposition to broadening standing is that such a provision would unleash a flood of litigation. He said that these contentions must give way to 20 years of experience. Rhetoric aside, there simply has not been a flood of citizen-initiated environmental enforcement litigation in the U.S.

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He gives several reasons as to why that has happened. It comes back to what I was talking about before in terms of the court requirements to get in the door in the first place, not to mention the sheer cost even with public interest environmental organizations coming forward. Even if your legal fees are paid, you're still on the hook for an undertaking to pay damages. There's the threat of costs subsequently and there's also the requirement to place a security deposit.

So I would argue even with the wording we are advocating, which is that any person can bring an action. Inherent in the legal system itself are the sorts of safeguards you're looking for, and that's documented in detail on pages 19 and 20 of my submission.

The Chairman: Thank you. We may come back on a second round.

Briefly, please.

Ms Nowlan: As to how I would distinguish habitat and residency, I would leave that decision up to the experts on COSEWIC. I just note that the identification of critical habitat must be done right now for the recovery plan under paragraph 38(5)(a). So I would rely on that designation as the amount of habitat that should be protected.

I also briefly wanted to say that the federal Fisheries Act prohibits damage to fish habitat and it doesn't limit it to the residence of a fish. As you can imagine, that would be pretty difficult to do. Fish habitat is defined in that act as any spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes. I'm sure scientists and ecologists would use similar definitions for other species.

So I would let scientists make that decision. I think you'll be hearing from other witnesses in the afternoon, scientists from the University of British Columbia, who will tell you that the residence is just not enough to protect habitat.

Mr. Boyd: Mr. Steckle, in response to your question about the cost of this act I have two points, one general point and one specific.

Specifically, in the United States the federal government currently spends in the neighbourhood of $60 million a year on its endangered species protection programs. That works out to about 25¢ per individual American. If we were to spend a proportional amount here, it would amount to somewhere in the neighbourhood of $9 million to $12 million.

More generally, the costs associated with taking steps now to protect endangered species in Canada will be fairly minimal compared with the costs we would face if we allowed these problems to grow. That's a powerful reason for addressing them now.

Also, the other side of the equation has to be taken into account, which is the benefits of protecting endangered species. Those are more difficult to actually put a number on, but I would put them as incalculable.

The Chairman: Thank you, Mr. Steckle.

I warn the members of the committee who explore the cost of any legislative measure to do that not in isolation from the benefits, which are much more difficult to assess and are usually far greater than the costs. Therefore, it's important to keep in mind a balance in examination of costs, which must be accompanied by an examination of benefits as well.

Mr. Knutson.

Mr. Knutson: My questions are primarily directed toward Ms Smallwood.

I don't know if you happened to read the transcripts of some of the evidence we received in Ottawa.

Ms Smallwood: No, I didn't.

Mr. Knutson: It sounded like you hadn't. Shortly before the Christmas break we received representation from...I think it was the woodworkers' association. Basically they represent the logging industry. Their particular concern, and they made the point quite forcefully, was first of all that this act was identical to the American act. Then they used the example of the spotted owl, which in their opinion, combined with the Endangered Species Act in the United States, has wrecked whole communities and prevented development. They used -

Ms Smallwood: I would like to answer that one, but keep going.

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Mr. Knutson: I just wondered if you could highlight some of the differences between this and the American act. Maybe you could use the spotted owl as an example, because it's not so much the floodgates argument we've heard but rather here's one case that had huge repercussions for whole communities. It wasn't the intention of the act but was used to protect old-growth forest. So they're were saying environmentalists did indirectly what they couldn't do directly.

Ms Smallwood: I suppose that there are several ways to respond generally to how this differs from the U.S. act. There are numerous examples, and a lot of them have the types of changes we're seeking to advocate. The big one, obviously, is in terms of legal protection for habitat. There is protection, mandatory protection, of critical habitat under the U.S. act that does not exist here. Again, these are things we're asking to change; I'll then address the question assuming those changes are made. Second, you should be aware at the outset that the spotted owl is currently not covered under Bill C-65, because it's not a listed migratory bird. So we're asking you to change both those things. Just at the outset, then, those are two changes.

As a general comment, the key difference between the U.S. act and the Canadian act - and this is typical of Canadian versus U.S. environmental legislation generally - is that this bill is inherently more discretionary than the type of mandatory provisions that occur under the U.S. act.

To deal specifically with the spotted owl on the basis that the changes we're looking for are in fact made, and that you then have a more equivalent set of legislation to deal with, first, I'd like to refer to my earlier comment in terms of the number of projects per se. Then I'll move on to discuss the owl in particular.

This, I would argue, is one of the high-profile exceptions to the general success rate of the U.S. act. Remember the percentages we're talking about, that 1% of projects in that five-year period did not proceed. So don't forget, when you look at the owl, the bigger success picture.

The second thing I'd like to address with the owl is that the results with the owl have been mixed. You have some instances, which you've heard about from the forestry sector, where land was protected. They don't tell you that there was also an instance where in fact land was.... There's a procedure under the U.S. act whereby we're going to see that the endangered species committee, or the ``God squad'', has the ability to override the provisions of the act.

So if you go through the consultation process - and remember, 99.9% go through - and you find that there is still going to be jeopardy to a species or its critical habitat and there are no acceptable alternatives to that under the act, then that's it. It stops. The development doesn't proceed. The endangered species committee has the option to exempt development projects in that situation. That committee has only been used three times in the history of the act. One of them was for the spotted owl. The land was exempted.

Again, I think it shows that in the bigger picture of things if there was such high demand in terms of the spotted owl or other species generally there would be more use of this committee. There hasn't been. It's only been used three times.

Finally, I'd like to deal with the whole economic question. Those comments aside, this is the exceptional side of the bill. Let's deal specifically with the owl and the comment that it's devastated the logging industry in the Pacific Northwest.

I apologize that I don't have this report copied. I only read it last night. It addresses a lot of the concerns that you have personally and that this committee will hear this afternoon.

This is a consensus report by Pacific Northwest economists. It was written in December 1995. It's entitled Economic Well-being and Environmental Protection in the Pacific Northwest. It was endorsed by 66 economists. So I'd like to stress at the outset that this isn't an environmentalist's report. It's an economic one. It's quite objective, even brutal, in terms of its findings.

It shows that the economy of the Pacific Northwest is undergoing a fundamental transition from an economy that's traditionally been based on resource extraction, dependent on a few extractive industries, to having a modern diversified economy. That's the first finding.

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The second finding of the report is that the reason the Pacific Northwest is managing this transition so successfully and with a higher than national average growth rate, even with the decline in the aerospace industry and with logging, is two things. One is the region's quality of life. The second is the increasing mobility of people and business. What they find is that as quality of life becomes more important to what makes people go somewhere to work and as the emphasis on natural resource extraction declines, you're getting a shift in how natural resources are valued. What they say is there's a shift in the economic values that natural resources are playing. It shifts from the extractive side to the quality of life side. In effect, a healthy environment is a major stimulus to a healthy economy.

The report also deals - surprise, surprise - specifically with this issue of the cost of endangered species protection and whether or not this is the real reason we're seeing the decline in the timber industry throughout the Pacific Northwest. As I've already said, the report concludes it's not. It's part of a bigger economic picture. The report says at page 11:

Because jobs in the natural resource industry have declined at the same rate as there have been bitter battles in the region associated with protecting endangered species, it has become commonplace to assume that environmental protection necessarily caused all the job loss.

This is what you will hear this afternoon.

This represents a serious misunderstanding both within the region and across the nation.

Because of time, I won't go into the reasons.

In conclusion, it's not the act, it's the broader economy.

The Chairman: It would help if the answers were a bit shorter.

Mr. Adams.

Mr. Adams: Thank you, Mr. Chairman.

Like the others, I want to thank you for excellent oral presentations and answers and very, very densely written presentations. The material here is very useful to us.

I think you know that for some of us, anyway, this is a political window of opportunity to get legislation of this type through. It is only a window, as far as we're concerned, so we have to move it. The more advice we can get and the more quickly we can get it the better. In some cases the more we can incorporate it and so on the better.

I have two questions. I'll pose them both at once, although they're not necessarily related.

First, Kate, I think it was in your presentation that you gave these figures for species at risk in B.C. and all that sort of stuff. On the plane last evening - and I suppose I shouldn't take hearsay over your figures - a fellow passenger went to great lengths to describe to a couple of us fish species; species or subspecies of salmon. I think he mentioned 142, or some figure like that, which had already disappeared. I wonder if you would care to comment on that in light of the figures you gave us, Kate, for species listed as threatened and endangered in the light of habitat protection.

The second, David, has to do with your comment on the definition of ``geographically distinct'', and including genetically distinct. I would like you to comment further on it, partly because I always thought just the use of the word ``species'' has at least some genetic overtones actually in it. It has also been suggested to us that the expression ``biologically distinct'' might be useful. I understand your point about ``geographically distinct'' not being enough on its own - I think your picture is a wonderful example of that - but I wonder if ``biologically distinct'' would be acceptable.

The Chairman: They are simple, short questions, and they can be answered very quickly.

Mr. Adams: Simple, Mr. Chair, but deep, I would say.

Ms Smallwood: My figures come from the B.C. Ministry of Environment. This committee will find there are differences between figures cited nationally and provincially. That is because the national organizations tend to focus on COSEWIC's list and we tend to focus on the provincial list. The reason the numbers differ slightly is provincially they tend to be more focused on subspecies.

David wanted to respond to the fish numbers.

Mr. Boyd: As Kate said, her figures are the Ministry of Environment figures, and they don't include specific runs of fish. The figure of 142 extirpated fish runs in this century is from a study by Tim Slaney, which we can provide you with.

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In response to your question to me dealing with the question of biologically distinct or genetically distinct, I have to admit I'm a lawyer, not a scientist, but it was through discussions with ecologists with the Ministry of Forests that the suggestion was put forward to use the phrase ``genetically distinct'' to cover species such as the Kermode. I understand that's a term of art in science and ``biologically distinct'' may not have a specific meaning.

The Chairman: Does that satisfy you?

Mr. Adams: Yes, I'm satisfied, Mr. Chair.

The Chairman: I didn't know this side of you, Mr. Adams.

Mrs. Jennings.

Mrs. Jennings: Thank you.

I too would like to welcome all three of you this morning, Kate, Linda and David. I would also like to thank you for your presentations this morning.

I want to address three areas, one to each of you. One is on the impact of scientific research on legislation, one on protected habitat and conflict with industry, and the third on tourism and recreation and education. I will give you all three questions and then I will wait for your answers.

Kate, you mentioned you were concerned that COSEWIC has an advisory capacity only and that the scientists in fact don't have more impact on legislation. Do you have any experience, looking at legislation in the United States or around the world, of where scientists may have more impact on legislation?

Linda, I'm concerned about the protected habitat area and industry in that area. If we take a look at all the migratory patterns and if we look at what is happening with all the species, including aquatic, we could conceivably cover all regions of the world, terrestrial as well as aquatic. Do you see workable solutions - and I hope we do - where industry and these areas can work hand in hand? I speak from experience, because I have land on the west coast which is right beside a marine reserve at the same time as the logging industry is working right on my back door. I agree, there are some problems. Do you see a realistic solution to this?

Thirdly, David, we haven't addressed tourism and recreation. I addressed this in Ottawa. As Mr. Forseth has said, the public has a great deal to do with us working effectively in any kind of act or legislation that will protect species and also endangered spaces. I have been over to Robson Bight, which is a marine preserve, and looked at it and found it wonderful. Unfortunately, the boats that come in too close - and they do come in within the 300 metre protection zone - frighten and change the area for those species that are there, the killer whales. But I'm also concerned about ocean kayaks. While we all admit it's great to go into recreation, we're now finding the ocean kayak can cause agitation among the seals, because they think it's a predator; they only see the shadow.

I'm looking at things such as that. It's not just one of us in industry or in mining or the environment, it's everybody who is involved. I agree education has to be number one.

Ms Smallwood: I can deal with the listing question. That's generally what I'm aware of, examples of the scientifically based listing process. We will get back to you on it, but my understanding is that's the process under the Australian act. About the U.S. process, I would need to double-check that as well, but my understanding is that those two are founded in science. The listing process, which is the entry to the protection, is founded solely in science.

Just to highlight the example where it's not, which it isn't with the four Canadian provincial endangered species acts, the results are really telling in terms of the low numbers that are listed. In Quebec, for example, not a single species has been listed under the act since it was passed.

If you have the entry door as political and not scientific, you preclude all measures of protection. That's why we want it to be scientifically based at the outset, so you have the broadest net possible, and then political considerations factor in later, particularly in the development of recovery plans and the exemption process.

Ms Nowlan: Thank you for your question. I think the answer lies in part with the distinction we've had too long historically between legislation for protected areas and legislation to govern resource industries. More and more, I think we're seeing in fact we need something that brings both of those together. I also believe we're on the way there.

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The Canada Oceans Act is a good example. It calls for the development of an oceans management strategy involving all stakeholders, including levels of government and other interested stakeholders - industry and environmental groups as well - to come up with sustainable planning for how industry and other uses can work together. Environmentalists aren't trying to stop all industry at all.

Another example I'll briefly allude to, which is controversial in the province, is our new forest practices code, which we say doesn't go far enough and isn't being enforced heavily enough. But on the other hand, for the first time in B.C. we have a law that specifically talks about maintenance of biodiversity and has specific planning requirements to maintain that biodiversity. I think we're on the right path to bring the two different strands together. That's how I would see the solution.

Mr. Boyd: Daphne, I would agree with you completely that education is a critical component in solving our environmental problems. I think this proposed act with its various public mechanisms will make a contribution to that education process.

In terms of the impacts of tourism and recreation, I agree that they need to be addressed. That is actually a good example of why clauses 31 and 32 need to be amended slightly to include the word ``disturb''. Obviously ocean kayakers are not directly harming seals or seal habitat, but they're disturbing those seals. Were those seals an endangered species, we would want to have a means of protecting them.

Really what it boils down to is balancing environmental interests and economic interests. You can still have ocean kayaking. We're not going to end ocean kayaking. But if there's an area that's particularly sensitive, then let's have regard for that and make sure steps are taken.

The Chairman: Thank you, Ms Jennings.

Madam Kraft Sloan, please.

Mrs. Kraft Sloan: I have three questions. First, we were told by previous witnesses that the Ontario legislation had resulted in a number of individuals losing significant property holdings. I'm wondering if you have any comments on that.

Second, does anyone have information on the number of jobs lost to automation in the forestry industry?

Third, subclause 13(2) in Bill C-65 says: ``COSEWIC is to be composed of not more than nine members appointed by the Minister after consulting the Council.'' COSEWIC right now has about 28 scientists in different subgroupings. I'm wondering if anyone has any comments about this other organizational structure that has been added into the design.

Ms Smallwood: To respond about the Ontario legislation, this was something Mr. Forseth raised with us as well, the concern regarding the impact of this type of legislation on private landowners. I understand that there's some concern with the committee in terms of the ability to compensate people who are affected.

I would refer you to subclause 7(2), which is the conservation agreements generally, but more particularly to clause 8, which deals with funding agreements. We strongly believe that where there is going to be an adverse impact on a private landowner, because this is an issue of national concern to Canadians, one individual or small business shouldn't be expected to bear the cost of the overall benefits to Canada of this type of program.

I think you'll find a mechanism already in place in clause 8 of the bill to deal with providing funding to cover the costs of programs and measures for the conservation of wildlife species. I'm not familiar with the specific wording of the Ontario provision to allow that sort of compensation or funding to support that initiative, but I think it's in place under clause 8 of this bill.

Mrs. Kraft Sloan: That wasn't the nature of my question. We had received presentations before the committee in which witnesses had suggested that people in Ontario, private landowners or whatever, had lost large tracts of land. It had cost them a great deal of money and they had to go bankrupt because of the Ontario legislation. I was wondering if you had heard of any situations like that. I realize that you're not from Ontario, but....

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Mr. Boyd: I had heard of one instance of that, the loggerhead shrike in Ontario. That's the only one. But to reiterate, those are certainly the exceptions. It may be possible to set up some type of compensation fund to address those kinds of issues.

To answer your second question, Madam Kraft Sloan, dealing with the question of mechanization of the forest industry, according to Statistics Canada, approximately 15,000 jobs were lost in the B.C. forest industry during the 1980s because of automation and mechanization.

The second point I would make is that in British Columbia, for a given amount of timber, we get half the number of jobs they get in Washington and Oregon. So we don't do a good job of value-added...and there's a provincial initiative to change that.

Ms Nowlan: On that same point, you'll be hearing from witnesses this afternoon on I think that very issue. I'm sure you'll be hearing a lot from both sides of the debate on that issue.

I also want briefly to refer to a Vancouver Sun article from November 1994 that talks about the impact on Oregon of the Endangered Species Act in the U.S. The title is ``Oregon restructuring example good one to follow in Canada''. It talks about how in fact Oregon's economy has prospered and how it's a myth that endangered species legislation has had a horribly negative impact on the economy there. The economy has prospered. I'd be happy to make copies of this available.

Ms Smallwood: The same point is made in the consensus economists' report I referred you to.

Perhaps we could ask you to repeat the third question.

Mrs. Kraft Sloan: The final question referred to subclause 13(2), where it talks about COSEWIC and how it be composed of not more than nine members appointed by the minister. I wonder if you have a response to this particular structure that has been identified within the legislation.

Ms Smallwood: I have two quick comments on that. First, in terms of the actual numbers, I don't have a response. However, we are concerned that all nominations to COSEWIC should be reviewed by an independent scientific body, and in particular, the government membership on the committee be limited. That would be my response to structure of membership.

Mr. Boyd: Responding directly to the question of numbers, I don't have a particular position, but I guess the best thing to do would be to talk to the current members of COSEWIC and see whether 9 people can do the work of 28, or whether that needs to be increased.

Mrs. Kraft Sloan: From what I understand, the 28 would exist, and this would be an additional structure. So it's another level the process would have to go through.

Thank you very much for your presentation. Your brief is really appreciated.

The Chairman: I have one final question from the chair before we adjourn for a couple of minutes to stretch our jet-lagged bodies.

My question has to do with the definition of critical habitat. Do you have any comment to make on that definition and on the desirability of inserting a definition of habitat? If so, how would you define it?

Mr. Boyd: I think the critical addition to the definition of critical habitat would be to add ``or recovery'' to the definition. We need to protect the existing habitat, but for many endangered species, in order for those species to recover to healthy levels, they're going to need habitats beyond the narrow amount they currently occupy.

The Chairman: So after the word ``survival'' you would insert ``and recovery''. Is that right?

Mr. Boyd: Yes, that's correct.

The Chairman: Fine.

Ms Nowlan: On the definition of habitat, yes, we do support the inclusion of the definition of habitat in the bill. We would refer to the definition provided by Mr. Stewart Elgie of the Sierra Legal Defence Fund in his clause-by-clause analysis:

``Habitat'' means the area or type of site where an organism or a population naturally occurs or formerly occurred and has the potential to be reintroduced.

That definition is from the Convention on Biological Diversity.

The Chairman: Thank you.

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On behalf of the committee, Ms Smallwood, Ms Nowlan, and Mr. Boyd, thank you very much for your appearance and your input.

The committee stands adjourned for three or four minutes, just to stretch legs and other parts of the body.

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The Chairman: Professor Scudder, welcome to the committee. We are very glad to have you here. We would like to invite you to give us your presentation, please.

Professor Geoffrey G.E. Scudder (Department of Zoology and Centre for Biodiversity Research, University of British Columbia): Mr. Chairman and members of the committee, I thank you for giving me the opportunity to make a presentation on Bill C-65. I'm going to speak to you as a scientist with considerable experience in biodiversity research and biodiversity conservation.

As background, I should tell you a little about my experience. I was head of the zoology department at the University of British Columbia for fifteen years and I served as the first director of the Centre for Biodiversity Research in the Faculty of Science. I've also served as vice-president of the Pacific Science Association, and in that capacity I was heavily involved in biodiversity studies and the promotion of biodiversity conservation throughout the entire Pacific.

As an aside, I should point out that my work in the Pacific was only curtailed when the National Research Council of Canada inexplicably pulled Canada out of the Pacific Science Association a few years ago. It's the only country ever to withdraw from the Pacific Science Association. The total savings were $3,600 a year.

Currently I serve on Environment Canada's Biodiversity Convention Advisory Group and on the biodiversity science board of EMANO, which is the new endeavour in environmental monitoring and assessment in Canada. So I was involved in writing Canadian Biodiversity Strategy and I was also involved in the Royal Society of Canada's Canadian Global Change Program, a publication looking ahead at long-term ecological research and monitoring in Canada. It looks at how future events may affect biodiversity.

All of my current research is on biodiversity assessment, rare species, and biodiversity conservation.

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At the Earth Summit in Rio in 1992 Canada played a key role, as you know, in convincing most nations to adopt the International Convention on Biodiversity. Canada was the first western nation to ratify and sign that agreement. Indeed, Canada has been successful in getting the convention office located in Montreal.

As a signatory, and now that the convention is legally in place, Canada is now legally bound by the convention, but it has also consistently demonstrated by its action that it wants to play a key role in biodiversity conservation on the world scene. Canada is obliged to put an endangered species protection act in place in order to comply with article 8(k) in the convention. It's my feeling that if Canada wishes to play a key role in this area, it must, and one would expect Canada to, put a strong endangered species protection act in place. Unfortunately, as you've heard, many of us feel Bill C-65 doesn't meet this expectation. This is in spite of the excellent and scientifically sound recommendations put forward by the federal endangered species task force, which has been referred to earlier.

It has also been noted already that Bill C-65 is far inferior to other legislation elsewhere in the world, particularly that in Australia. It's also in a number of respects weaker than endangered species legislation on the books in some of the Canadian provinces.

Before I go into making some comments on Bill C-65, I would like to congratulate the federal government on a number of achievements, two in particular; first for having quantified the Wildlife Act so it applies to all living organisms. The committee should be aware that this has not been done in all the provinces. For example, in British Columbia the wildlife act that contains the provisions for some endangered species protection still defines wildlife in the narrow sense; that is, it's basically birds and mammals. It has not been changed to include the wider definition.

Secondly, again we should congratulate the federal government for circulating the earlier 1995 legislative proposal for an endangered species act. This provided an opportunity for the public to provide input into this bill in a formal way. Unfortunately, the bill not only fails to include many of the recommendations from the government's own endangered species task force but it also fails to incorporate some of the sound input provided by the scientific community, the environment community, and the Sierra Legal Defence Fund, to name just a few of the respondents to that earlier proposal.

About the only major improvements I see in Bill C-65 over the earlier legislative proposal - and I should point out there are a number of good things in that proposal - the only real improvements are the deletion of the definition and parts concerning a peripheral species category, species confined to within fifty kilometres of the national border, which were excluded in the previous one and now they are not mentioned, and the inclusion of clause 33, which you've already heard something about. This latter clause, which concerns regulation protecting certain cross-boundary species, in my opinion is very important. I'll make some more comments on that near the end of my presentation.

The clauses in the 1995 legislative proposal which most of the scientists regarded as excellent were those concerned with the wildlife species listing process. This is now covered in clauses 12 to 17 inclusive in Bill C-65. You no doubt know the Committee on the Status of Endangered Wildlife in Canada, COSEWIC, has done excellent work in the past, and it's good to see it will now have a formal legislative mandate.

Subclause 14.(1) of Bill C-65, which states that ``The members of COSEWIC must have expertise drawn from a discipline such as conservation biology, population dynamics, taxonomy, systematics, genetics or from traditional or community knowledge for the protection of species at risk'', is a sound subclause. These are exactly the areas of expertise that are needed to assess whether a species is in one of the endangered categories. The decision must be a scientific one, based on the scientific disciplines involved.

The legislative proposal that was circulated earlier in 1995 stated clearly in paragraph 5.1.2 that the proposed act would state that COSEWIC would operate at arm's length from the government and would be charged with making decisions on the basis of the best available scientific, community, aboriginal, and traditional knowledge and information. We now find that although clauses 26 and27 of Bill C-65 stipulate that COSEWIC will make decisions about the designations or classification of wildlife, subclause 30(1) states that the Governor in Council, on the recommendation of the minister, may - and I stress ``may'' - make regulations establishing and amending the list of wildlife species at risk based upon COSEWIC's designations and classification of wildlife species.

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In other words, the final decision as to whether a species is endangered and put on the list is going to be a political one, not a scientific one. I regard this as a major shortcoming in Bill C-65. Either a species is endangered or otherwise at risk, or it is not. I think the listing decision must be made by scientists. If Canada adopts Bill C-65 without changing this provision, I don't think it will be able to claim leadership any longer in this area of biodiversity conservation in the world.

From the biological point of view, the position on species listing now taken in subclause 30(1) of Bill C-65 is scientifically indefensible. You can't play politics, in my opinion, with endangered species. You will lose the respect of the scientific community and I think the public as well.

Subclause 34(1) similarly states that the responsible minister may - and I stress ``may'' - make an emergency order providing for the protection of wildlife species if COSEWIC in an emergency designates or reclassifies the species as endangered or threatened. In my mind this clause is also not acceptable. If there is an emergency, there is an emergency. Politics should be excluded.

I'll now turn to the part that you've heard before, talking about habitat. It is now recognized throughout the world in all jurisdictions that the major cause of species endangerment and extinction is loss of habitat. Although over-hunting has been a factor in some of the charismatic mega-fauna extinctions, habitat loss is by far the overriding problem in the majority of species at risk.

Any thought that you can protect a species without protecting habitat is absurd. Any legislation that fails to automatically protect the habitat of a species deemed in need of protection automatically must be classed as weak and ineffective. No matter how you may wish to proceed politically, you will never save a species without also protecting its required habitat - substitute ``critical habitat'' if that's a preferable term.

I'm aware that subclause 31(1) of Bill C-65 states that no person shall kill, harm, harass, capture or take an individual of a listed endangered or threatened species. I also see that clause32 states that no person shall damage or destroy the residence of an individual of a listed endangered or threatened species. But these statements alone are insufficient. These clauses and other clauses of the bill, to my mind, seem to emphasize animals and animals only. I don't know how you harass a plant. Botanists certainly do not talk about plants having a residence. Plants have a habitat and they must have a habitat. They must have a substrate into which their roots grow. Plants, like all living organisms, occupy niches, and niches occur in habitats.

I must repeat that if automatic habitat protection is not included in Bill C-65, it will fail to protect the wildlife it is intended to save.

I am aware that habitat is to be included in recovery plans, but Bill C-65 does not require the minister to adopt these recovery plans. Indeed, recovery plans have no legal force; they're not legally binding.

In passing, I should observe that Bill C-65 as it stands fails to fulfil a key requirement of the national accord for the protection of endangered species which, as I read the wording, commits the federal and provincial governments to pass legislation that will provide protection for the habitat of endangered and threatened species. Bill C-65 as currently worded automatically fails to provide any protection for the majority of species already on the 1996 list of species at risk in Canada. So we have a bill that is in fact not going to protect the majority of species already on the list. This is because, as you've already heard, it applies only to aquatic species, certain migratory species and species on federal lands.

In other words, it will likewise also fail to protect most of the species that will be placed at risk in years to come. I think this is an important part. You're putting in place an act that not only must protect all of the species currently on the list but also must serve to protect all of the future species that may come down the line. Most of these will not occur on federal lands.

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My opinion is that to be effective, Bill C-65 must apply to species at risk no matter where they occur. At the very least it should apply to lands owned by federal crown corporations. I believe the legislation should also apply to species at risk that occur on private lands with appropriate agreements and permits as they -

The Chairman: Excuse me. This is a signal to tell you that we have four minutes left.

Prof. Scudder: Let me move to clause 33, transboundary species. My concern here is that it should apply to all transboundary species, not just those covered by the migratory act, which has been mentioned to you. I think it should apply to all provincial boundaries.

Most species that are on the list and are likely to come on the list do not lie within the jurisdiction of the province. The province is legally bound to look after species that are confined to that province. These are very few. The Vancouver Island marmot would be one of these. It's the only one the province has put aside critical habitat for. Most the species cross boundaries.

These must be protected, most of them in the sense of critical habitat. You were asking earlier about critical habitat recovery plans. Most of these recovery plans are based upon minimal viable populations. This is a concept such that you need a certain number of species and therefore a certain habitat to provide that protection.

If you think about the requirements for some of the larger predators.... Some of them are already on the list and other will no doubt be added in future. As an example, I cite some literature here. I've provided the chairman with a copy of the papers.

In terms of grizzly bears, you will need 500 individuals of grizzly bears to provide a protective system. It's been calculated that this requires 129,500 square kilometres of land. That could never be provided within the borders of one province. The animals migrate many hundreds of kilometres across provincial borders and across international boundaries. To put a proper recovery plan or conservation plan in place requires a concept of protecting these over a viable range. This involved meta-population dynamics, large subsections of land put aside with connections.

So this is long-term planning requiring multiple jurisdictions. When multiple jurisdictions get involved you have problems of coordination - different approaches, different perceptions and commitments. I ask that the legislation be modified to include the jurisdiction of animals that do now, and will in future, cross any boundary, a boundary not confined within the limits of the province.

I should mention that I have had the privilege of looking at the previous written presentation prepared by Stewart Elgie. To save time, I'll not deal with any of those. I agree with all of the submissions. They're all scientifically sound.

I'll finish up by pointing out that it may appear difficult at the present time to put a strong and respected scientifically sound endangered species protection act in place, but I think it will become even more difficult in future. It may appear expensive now to do it but it will become exorbitantly expensive in future. To put protection in place is cheap. To plan recovery and restoration later is exorbitant.

I hope the committee will take the opportunity to strengthen the act. As you've heard, the public generally puts high priority on endangered species protection. I hope the government will do likewise. I think there's a golden opportunity here for Canada to make a real mark in the world in conservation biology.

Thank you.

The Chairman: Thank you, Professor Scudder.

Next is Ms Murray.

Ms Anne Murray (Vice-President, Federation of British Columbia Naturalists): I'd like to thank the chairman and members of the committee for the opportunity to speak today. I feel very privileged to have been given a voice.

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Wildlife species are the national treasures of Canada. As I see it, our goal here today is to give rare species a fighting chance to survive into the next millennium. We must protect them and we must protect their habitats. We're looking for strong federal leadership and strong, effective legislation.

I brought along a burrowing owl to share our table today to remind us that we're here on behalf of wildlife. I think it's quite salutary to realize that this specimen was taken in 1936 on Lulu Island, the site of the airport that those of you who came from Ottawa flew into for this meeting. You won't find any breeding burrowing owls on Lulu Island any more, and you won't find any wintering ones either.

I represent the Federation of British Columbia Naturalists. We have 52 federated and affiliated clubs located all around the province. I've given you copies of our submission. I don't think I'm going to read it word for word, because you've had a chance to see it. We submitted it ahead of time.

I want to concentrate on the main issues and to give a slightly different slant from the presentations you've heard so far. I will go through a little bit of the life history of the burrowing owl and how we see that the legislation will affect the future of this species. That's what I'm going to look at first. If there's time, I'll look as well at an aquatic species, the white sturgeon.

The Chairman: May I remind you that I will give you the signal that you have only five minutes left.

Ms Murray: Okay.

The burrowing owl is an endangered species in B.C. It's listed under the B.C. Wildlife Act. It is a red-listed species named in the B.C. Wildlife Act. It is listed but I wouldn't say it's protected. The numbers have diminished to the point of extirpation in the lower mainland, as I've already mentioned. They are down to just a bare few in the Okanagan, with some wintering birds. They've tried reintroducing the species. Four hundred birds have been reintroduced into the Okanagan. That happened in the 1980s. The numbers gradually diminished. Year by year, fewer came back, and now there have been no nesting birds there since 1994.

In 1995 COSEWIC upgraded the burrowing owl from ``threatened'' to ``endangered''. It's a migratory species but it's not covered by the Migratory Birds Convention Act because it's an owl, and owls and raptors are not in the Migratory Birds Convention Act.

So this bird appears to have some protection provincially by being listed under the B.C. Wildlife Act, but somehow this hasn't meant any protection on the ground. Its numbers have decreased. It's endangered now, and extremely rare. It lives in the arid grasslands of British Columbia. You will find it in the prairie provinces. In B.C. it's found in the south Okanagan. This is the northern limit of its range here. Burrowing owls do exist in the deserts of the United States of America, Mexico, and down in South America. It used to arrive in about April, bred in a few sites in the Okanagan, and then in the fall it would go south, across the border down to the deserts. So it's a transboundary species. We don't know exactly where the Okanagan birds went.

British Columbia's arid grasslands are quite distinctive from the grasslands in other parts of North America. We have a particular local climate here. We have particular geographical situations. So you get an unusual degree of biodiversity in our grasslands.

Thirty percent of British Columbia's red-list species are found in those habitats. Some extirpated species that were found there were the pygmy shorthorned lizard, the white-tailed jackrabbit and the sage grouse. So we've already lost a number of species from those grasslands.

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The burrowing owl nests in holes excavated by badgers. The badger is itself threatened; it's a blue-listed species. The burrowing owl can be found in the burrows of ground squirrels and gophers, but the numbers of those are limited in the habitat in B.C. So its residence in terms of where it could nest is threatened as well.

Then there are its food sources. What does it eat? It eats mice. The mice it eats, such as the Great Basin pocket mouse and the western harvest mouse, are themselves endangered. They're either red-listed or blue-listed. It also would eat insects. There's an enormous number of insects in the Okanagan. It's an extremely diverse region for insects, but a large number of these are in fact at risk. We have 75 species found nowhere else in Canada but the Okanagan; 23 species are endemic and many are at risk, such as the Mormon Metalmark butterfly, which has only one population, near Keremeos. The Parowana tiger beetle, which used to be in the Okanagan, was wiped out by a housing development.

So the prey this owl feeds on is itself at risk. Of course, without prey it will have no food. This may have been a cause of its decline and the decline of the introduced birds.

The Great Basin pocket mouse is on the B.C. blue list, and the western harvest mouse is on the red list, meaning fully endangered.

So the burrowing owl has no federal protection under the Migratory Birds Convention Act. It's transboundary. It's a migratory species. It's listed under the B.C. Wildlife Act, but its numbers have decreased. So what will the Canada Endangered Species Protection Act do for it?

I've listed in my submission the changes we would like to specific clauses, and because time is limited I can't go through all of them. But as we see it, as currently drafted it doesn't look as if either it or its habitat will be protected, not with sufficient strength to ensure its future here. Some of the mammals that dig burrows on which the owl depends for nest sites will be protected in limited areas of the Okanagan, notably the Indian reserves in that area, but most others are on private land or provincial crown land. Not being on federal land, they're not covered. The antelope brush habitats are on Indian lands, so there's a chance there.

We would like subclause 3(2) to be deleted and endangered species and their critical habitat protected from harm wherever they occur in Canada. Remember, this is the rare species we're talking about, and all the endangered species are by definition rare. If they occur in Canada, could we not please protect them and not limit it to just the federal land? If this is not possible under federal jurisdiction, then certainly work with the provinces so that a provincial act could cover the deficiencies.

We're concerned that habitat is not defined in the bill. We talk about critical habitat and we talk about residence, which is not a very biological term. I've made some suggestions for changes to those clauses.

Our recommended actions for this habitat section would be a change in definition of habitat, and Linda Nowlan has already given you a perfectly acceptable definition for that. We don't like the term ``residence''. We would need a much broader definition, or maybe it could be missed out entirely and ``critical habitat'' used.

In clause 3, delete subclause 3(2).

In clauses 31 and 32, we'd like to see more suggestions of protection from disturbance rather than just direct harm and against attempts at harm. Disturbance would cover a lot more of the situations these rare creatures are facing in our modern world. Not too many people take specimens or take pot-shots any more at something as rare as this. For one thing, they can't find them, and if they did they'd probably be interested. I think most people have a good feeling towards creatures.

But disturbance, quite often well-meaning, is a very common problem. Sometimes it's as simple as ignorance - people putting a housing development in an area, when if they'd done a bit more research or had a bit more input or knew a bit more about their surroundings, it wouldn't have happened.

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I think education is key to this, but we do need the legislation to be strong to make provision for preventing this sort of thing. We may have to rap a few people on the knuckles to start with and then others will get the message. We would like clause 33 to be strengthened to require the minister to make regulations and to broaden the activities - just a little more strength in that.

I'll just mention aquatic species. Subclause 3.(1) states that aquatic species and their habitats are covered by the bill, but ``habitats'' is not defined, so there's some ambiguity there. Marine mammals such as the endangered white whale don't have a specific residence. Many fish species are already covered by the federal Fisheries Act, which automatically prohibits harm to fish habitat. In this respect the proposed Canada Endangered Species Protection Act as currently drafted is going to be weaker than the Fisheries Act, because you don't have that automatic habitat protection.

I'm going to take an example from British Columbia, just to have something to talk about that's a little more specific. It's the white sturgeon. I didn't bring a specimen of that because typically they are several hundred kilograms. If you're familiar with it, it's a really big, nice fish. It's commercially valuable. Its numbers have decreased dramatically in the last few years. At the turn of the century 500 to 1,000 tonnes of white sturgeon were harvested from the Fraser. That was down to about four tonnes annually by the 1980s. In 1995 fishing for white sturgeon was prohibited. The scientists are out there trying to study what has caused the decline. They're not absolutely sure.

One thing that struck us when we were discussing this at the federation was that you have different federal departments at cross purposes when it comes to an issue such as the white sturgeon. You have dredging going on in the lower Fraser River under federal permit, yet the white sturgeon is a bottom feeder. It feeds on the mud in the bottom of the river and finds invertebrates - mollusks and so on - and small fish in that niche. The federal government is funding recovery programs and study of the white sturgeon in B.C. through the habitat conservation fund. So you have federal money going into research and trying to get the white sturgeon back into the river and you have federally permitted activities that could very likely be working against the species.

So what we're looking for here is that there be more coordination. We felt an additional subclause could be added to clause 42 to state that all federal departments must be required to comply with and implement the recovery plans for listed species. Furthermore, the recovery plans should have legal force and there should be a requirement to pass regulations to implement measures in a recovery plan, particularly for habitat protection.

We're going to be looking at departments being at cross purposes more and more when we think of such issues as the introduction of exotic species by aquaculture operations and fish farming. A lot of these things are going to be operated under federal permit. They can have disastrous effects on native species and local habitats. It's very important that any federal actions in another area aren't at cross purposes to this proposed act, and regulations could cover this, I feel. Our recommended action for this clause is that a new subclause should be added to clause 42, stating that all federal departments must be required to comply with and implement recovery plans for listed species and no federal agency or department should authorize any action that contravenes a recovery plan.

The Chairman: Please wrap it up.

Ms Murray: You have my submission. We mentioned COSEWIC listings and our anxiety about some exemptions. I can answer questions on that if you have any. We've listed our recommended actions at the end of each clause. We would like more advance review of development projects. We would like citizen enforcement action, and emergency listing which is more workable. Members like ours are those who are going to bringing citizen actions if we do see that habitat or a species is at risk. Our members are out in the field. They're the ones who quickly know if something is wrong in an area. But they would be very intimidated by the process you've set out in clauses 56 to 60.

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Thanks a lot for allowing me to speak.

The Chairman: Thank you, Ms Murray, for your interesting presentation.

We now go to Adriane Carr with the Western Canada Wilderness Committee. Welcome. Would you like to proceed?

Ms Adriane Carr (Executive Director, Western Canada Wilderness Committee): Thank you very much, and thank you as well to the committee for taking this time to travel across Canada to hear submissions from different groups. I think that's an incredibly important and valuable role and commitment you are making regarding this important proposed act.

I'd like to introduce Paul George, a founder of Western Canada Wilderness Committee. He's the biologist and I'm the geographer.

I also happen to have been sitting for the last three and a half years on the federal government's committee regarding the implementation of the biodiversity convention in Canada. I thought I would note for this committee that in fact it was in the development of a plan for the implementation of the biodiversity convention that all of the environment groups, including groups such as the Canadian Federation of Naturalists, the Canadian Wildlife Federation, the Sierra Club of Canada and our own organization, said unanimously they would resign from that committee should there not be strong wording in the implementation plan for endangered species legislation in this country. Together, we felt it was one of the most important achievements Canada could make within its own capacity to implement and live up to the spirit of that international convention.

Unlike my colleague from the B.C. Federation of Naturalists, who was so well organized, our Xerox machine broke down this morning, and you do not have a copy of our submission in advance. I will read it into the record, and then Paul and I will be open for questions. My apologies for not getting it to you beforehand.

We are the largest wilderness protection organization in western Canada. On behalf of Western Canada Wilderness Committee's 25,000 members we would like to express our dismay at the inadequacies of the proposed legislation, Bill C-65, to protect the endangered species in Canada.

In the summary found on page 1a of the bill, the purpose of the proposed legislation is laudable:

to prevent Canadian wildlife species from becoming extirpated or extinct and to provide for the recovery of those that are extirpated, endangered or threatened as a result of human activity.

The enactment applies to Canadian indigenous species, sub-species, and geographically distinct populations of wildlife at risk.

Again, that's a goal we agree with. It would be wonderful if in fact this proposed legislation accomplished that. Taken at face value, it should provide protection for all, including the best-known species at risk - grizzly bears, spotted owls, marbled murrelets, the Vancouver Island marmot and the hundreds of endangered races of salmon found in geographically distinct streams and currently on the verge of extinction due to overfishing and the habitat destruction caused by clear-cut logging.

This action also protects the rarest of our ecosystems, such as the desert found near Osoyoos in British Columbia and the garry oak and arbutus forest near Victoria, B.C. But this legislation will not protect these species or these ecosystems. The proposed act does not apply to most of these species because they are not found on federal lands or under direct federal government jurisdiction.

I would like you to ask yourself this question: Do you think this contradiction between the stated intent of the act and its applicability would be understood by average Canadian citizens who, when recently polled, came out overwhelmingly, across this country in all regions, including the conservative prairies, in support of federal endangered species legislation?

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A further critical inadequacy of this proposed act is that it applies only to the protection of the creatures themselves or their residences, not the larger habitats they rely on to survive, which are only noted in recovery plans, which are themselves not mandatory. We understand federal legal opinion is that the federal government does not have jurisdiction over provincial lands and the wildlife thereon and therefore cannot draft legislation to protect the endangered species there. We respond that in the name of national defence, for example, the government does have powers that supersede provincial powers and that in this case the preservation of species is, like national defence, a higher good and part of earth's natural defence. We submit that Canada should not sign international conventions such as the Biodiversity Convention if it does not have the power to fulfil the obligations by acting for all of Canada.

We believe in the universality of the right to survival for the wild species that inhabit Canada. Just as our constitutionally protected human rights apply across the country, so should the rights of these natural creatures to survive. Not only is their survival a right, we believe it is a necessity, because of the interdependency of species and the possibility of their being keystone or indicator species for the health of an entire ecosystem.

Since the inception of the Western Canada Wilderness Committee in 1980, we have realized the only unfailing way to ensure a species survives is to preserve large, intact wilderness areas. The principles of conservation biology have extended this to encompass interconnected corridors between wilderness areas, to ensure the gene pools are not isolated and migration can occur, something especially important in times of climate change.

We at the Western Canada Wilderness Committee have been advocating a minimum of 40% preservation, which in fact is achieved in jurisdictions such as Alaska. We have been advocating the protection of large natural areas, such as all the remaining pockets of old-growth forest in the lower mainland of B.C., which are critical habitat for the endangered spotted owls. I'll add they are not currently protected. They have been opened to development by the provincial government, that, according to the government's own biologists, spelling sure extirpation for this endangered species in Canada. Also, all the remaining watersheds remaining in Clayoquot Sound, located on the central west coast of Vancouver Island and representing the largest tract of low-elevation temperate rainforest left in North America, critical habitat for wild salmon and old-growth forest-dependent species.... Another area is the Stoltmann Wilderness, just 200 kilometres north of Vancouver, B.C., recently opened up to logging in its old-growth forest and currently considered the southernmost survival line in the sand for grizzly bears on the west coast of North America.

More than one-third of this proposed endangered species act relates to litigation regarding activities that are negatively impacting on endangered species. The fines are potentially astronomical and the jail terms heavy. We believe this part of the bill cannot compensate for the ineffectiveness of the rest of the bill because of lack of universality across the country and the non-mandatory habitat protection. Therefore we submit the following recommendations.

First, the protection for endangered, threatened, and vulnerable species should be extended to all natural species and ecosystems in Canada. We could cover it all that way and let a court test determine whether the federal government has the powers to enact such country-wide legislation. In fact, as a side comment, I believe it is political will, not necessarily legal opinion, that is creating the problem. It could be tested in court. There are legal opinions saying the federal government does have this jurisdiction. They are perhaps not the same lawyers as you are considering, but there is that legal opinion.

At a minimum, you could require parallel or mirror legislation on behalf of all provinces and couple that with a safety net clause to allow the federal government to act should a province fail to protect a species. For example, if the case is, as it is now in the province of B.C., that a province is saying it has sufficient legislation yet has opened lands that are critical to the survival of an endangered species, such as the spotted owl, there should be an ability for this proposed act to make a difference for the spotted owl. If it doesn't - and in its current form it doesn't - then it's worse than having no act at all.

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Our second recommendation is to change the word ``residence'' to ``habitat the species needs to survive'' wherever it appears in the proposed legislation.

Third is to make habitat protection a mandatory requirement of recovery plans and make the implementation of recovery plans mandatory despite the costs. We know the argument is always cost. The cost of not protecting species is ultimately much higher.

Fourth is to ensure the Committee on the Status of Endangered Wildlife in Canada designations of wildlife at risk made by scientists based on scientific criteria and evidence stand and not be subject to being accepted or rejected by the Canadian Endangered Species Conservation Council, a political body.

Fifth is to remove the exceptions to prohibitions regarding national security, safety and health, including animal and plant health. This clause has the potential to exempt many of the activities that do threaten the survival of species, such as the use of toxic pesticides.

Sixth is to add a clause to the proposed act to encourage the federal, provincial, and territorial governments to place priority on completing their wilderness parks and protected areas systems, including mechanisms to ease the ability of governments to purchase key endangered species habitats noted in recovery plans, such as private lands that are critical to the Okanagan desert species in B.C.

That completes our set of recommendations. What I have also submitted is a set of publications that the Wilderness Committee has produced. They will be distributed to you. There are a number of publications on the protection of biodiversity in Canada in general. About the first publication you would receive, we published over 250,000 copies of those and distributed them across Canada. Others have to do with specific species, including spotted owls and bears, and there are others to deal with specific habitats, which do include habitat that is critical to the survival of a variety of species.

The Chairman: Terrific. Thank you.

Mr. George, would you like to add a couple of words?

Mr. Paul George (Western Canada Wilderness Committee): No, she said it all.

The Chairman: Mrs. Jennings, please.

Mrs. Jennings: Thank you, Mr. Chairman.

First I would like to thank you all for your presentations this morning and welcome you here. As you are from B.C., the same as I am, I certainly don't have to welcome you to B.C.

A couple of things concern me. Professor Scudder, you were talking about the concern that an emergency order providing.... If COSEWIC saw an endangered species suddenly arise, you didn't really feel it should have to go through the minister responsible. I'm sure you have an idea just how you would like to see someone react to it. My concern was if the minister is not going to make this sudden decision on an emergency order, are you concerned about the time involved for an emergency order by the minister involved at that time, or are you concerned that it might not be forthright because of a political decision?

Prof. Scudder: The latter. If scientists are being honest, using all of the scientific available information, and they declare an emergency, it is a true emergency.

Mrs. Jennings: I see. So it's definitely political?

Prof. Scudder: Yes.

Mrs. Jennings: Thank you very much.

The other one I was concerned with is directed to Ms Murray. During the task force.... I was not present before. I've been on many committees since I've been in Parliament, not just on the environment committee, so I come rather late to this, although I'm very interested in it.

During the presentations at the task force that preceded the bill coming into effect I understand many people sat at the table and did presentations. One of the major concerns from the industrial groups, the farmers, and the cattlemen, was that they had made many attempts in their daily life to look after the species on their land, but nothing is mentioned, even in the preamble, to make allowances for this.

My concern is if the burrowing owl is a migratory bird, I can't understand why it's not included in the migratory.... There must be a reason. What is the problem right now with the burrowing owl?

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As parliamentarians surely we're here to listen to those who are experienced in your field. We don't have all the expertise. Many of us have very little expertise in this area. So why would you suggest that if a presentation was made on the burrowing owl we in fact may have ignored it? Was there just so much coming at the people, too much material?

If it is indeed endangered, now lost to Lulu Island and very limited in number in southern Okanagan, then, one, why is the burrowing owl not included in the Migratory Birds Convention Act, and two, why was it not included in this? Was the presentation not specific to the burrowing owl?

Ms Murray: I'll talk to the first question, as to why it's not listed in the Migratory Birds Convention Act. Traditionally, raptors seem to be a provincial responsibility, not federal. I don't quite understand this from a biological, naturalist point of view, but I guess some committee met some years ago when the act was drafted and at that time didn't get the input that was needed to make them realize that other species.... It actually lists by name what species are covered, and it's not there. So there's this little hole in the legislation.

That's why I picked out the burrowing owl as an example. I wanted to show you an example of a little hole in existing legislation that I would hope the Endangered Species Protection Act will cover and be a little bit broader in scope so that we don't get these kinds of anomalies there.

I don't know if that answers your second question.

Mrs. Jennings: Yes, thank you, I understand.

Finally, Ms Carr, I would like to tell you that one of my jobs was as a teacher for thirty years. I want to thank you and the Wilderness Committee for the work you've done. Education is so paramount. While we have industry that gives us education - and I've many times used information from MacMillan Bloedel and Fletcher Challenge - we also need this. It's very helpful.

Ms Carr: Thank you.

The Chairman: We'll go to Madam Kraft Sloan, please.

Mrs. Kraft Sloan: Thank you very much.

Professor Scudder, I want to thank you for your presentation. I found in quite interesting when you talked about the difference in treatment between plants and animals. I thought this was a very important consideration for us.

I have two quick questions. First, are other there other sections in the act that you feel are very glaring in their discriminatory treatment between plants and animals?

Second, I want to ask Ms Murray if she can tell me why, while certain species were listed on the provincial red list, they were not on the COSEWIC list, the subspecies or genetically distinct ones? Why has that happened?

Prof. Scudder: On the question of whether there is, if you like, discriminatory wording in places, I think the act needs to be gone through by somebody with that sensitivity to pick out where the wording is obviously big-wildlife-directed rather than thinking about the plant side. Because the plant life is very different. Likewise, my presentation with respect to the need for a landscape level of thinking for large predators, that concept, of course, doesn't apply to the plants. So you need to have the balance and look after both of them.

Ms Murray: To add to Dr. Scudder's answer on the discriminatory nature with the plants, I think the clauses that deal with exemptions, such as clause 36, are a little discriminatory to plants. I didn't really have time to enlarge on that, but it is there on pages 8 and 9 of my presentation. Exemptions are going to be allowed for, things that endanger the health of humans, plants or animals. We could see situations where so-called weed plants would be hazardous to an agricultural operation or something like that.

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I can't think of a specific example, because nothing that's classified as a weed is also rare. The two things don't fit. But I think that clause, unless it's tightened up - and we do suggest tightening up that whole exemptions thing, because we can think of all sorts of absurd examples - needs to be looked at, just to make sure you don't have particularly agricultural impacts on plants there.

Why are certain species listed on the provincial red list and not on the COSEWIC list? COSEWIC took the stand of a broader overview of Canada and Canadian species. Originally it tended to list just species. Then it introduced a few subspecies. What we're finding out more and more each year is just how important the genetically distinct subspecies are. For B.C., where we have a lot of peripheral populations, they have a huge impact on the health of evolution for a species. It's at the peripheries and the edges, the borders, where you have species that.... For instance, with the burrowing owl it's a little farther north, it's a bit colder, it's going to adapt to those sorts of climate situations. The availability of prey may be a little different from what it is in the desert. So it's going to evolve different characteristics and in time that could lead to a different species. If we don't include the subspecies, we cut that off.

The provincial red list has taken a broader view and it has included more detail. We would like to see the lists merge but the COSEWIC one become broader.

Mrs. Kraft Sloan: From a technical point of view, COSEWIC is not restricted in listing subspecies or genetically distinct species. It's just that it hasn't necessarily had that sort of focus. Is that correct?

Ms Murray: Yes, that's my understanding of the situation. I'm not involved in COSEWIC, so I'm not absolutely sure what their terms of reference were.

If you look just at the species level you might say, well, it's reasonably common across Canada as a whole, it's a big country; but here in B.C. it might be quite an unusual species. But then when you look deeper, you say, ah, but the B.C. one is actually subtly different. Biologists argue among themselves whether something is a subspecies or a species. It's not cut and dry.

But we could make it a little bolder in the legislation. That will cover advances in science in that area.

Mrs. Kraft Sloan: I suppose this is a good argument for overlap in jurisdiction at some points. Some people say, well, if the provincial government is in the field the federal government should vacate the field, but in this situation we can see the extreme importance of some level of overlap here. An overlap can be corrected by using another mechanism, whereas if there were a gap we would have extinction.

Ms Murray: Yes.

The Chairman: Mr. Adams.

Mr. Adams: Thank you, Mr. Chair.

I'm not sure you were all here before. I would like to ask the same questions I asked before. One has to do with clause 2, which is on the definition of ``species'' and so on which we discussed. The other has to do with critical habitat, residence, and that sort of stuff. It's not simply because I'm interested in definitions. It's to give you an opportunity to talk about what is involved there, because we have to capture in the language of the legislation as much as we can.

On the matter of species and that sort of thing, I made the point before that someone had suggested to us ``biologically distinct'' as well as ``geographically distinct''. Someone said to us we should replace ``wildlife species'', which is in clause 2, with the following:

a species, subspecies, or geographically or genetically distinct population of animal, plant, or other organism that is wild by nature

What do we need, what sort of wording? What should we be considering when we're coming up with the wording for ``species'' there?

I also asked about the habitat matter. I think now we all understand the difference between a den and a nest and habitat and general surroundings, but in your presentations I heard ``meta-populations'', which I had not heard of before. I understand that to mean that one species, whatever it is, depends on the existence of others. Then I heard ``life web'' in the spotted owl presentation.

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In the matter of critical habitat, just so you know, it's been suggested to us that we take ``critical'' out, because it actually makes it too pointed. You simply go to habitat that is necessary for the survival and recovery of a wildlife species, and so on. Someone else said to change ``critical'' to ``core'' habitat, and so on.

Second, I'd ask about the fish and the salmon, the anadromous salmon. I now know that's what they are. I ask about the salmon because they had not been mentioned, and someone had told me that 142 of these subspecies are gone. It struck me that it tied into the question of habitat really well. Here you have activity on the land affecting the spawning location, affecting the run in fresh water, and activities on the land affecting the adjacent ocean and so on.

If any of you could address those points I'd be grateful.

Prof. Scudder: Maybe I could address the species issue. The definition of a species depends upon which group you're working with. It also depends upon the concepts that prevail in that area. For example, species are generally regarded as interbreeding biological entities that will not breed with another one. That's fine for most groups, but within plants, insects and others, species do interbreed. So it isn't an absolute. It's a genetic entity that is going its own direction, independent of other similar such entities. That's a vague one, but that's what it means.

People vary on how to define whether it's a species or a subspecies, because they generally have concepts of difference. It's the degree of difference. If it's this degree of difference you call it a species; if it's this degree of difference, and there's a tendency to see populations breeding more together, you call it a subspecies. Sometimes they're easy to recognize, sometimes they're not.

There's a level below this that you usually can't recognize from the outside, and that's the genetically distinct geographical race or population. Race is again a level that conceptually is slightly below species and subspecies, and then if you can't even imagine that it's that level then you could call it a population.

So these are various levels. They all have their own evolutionary properties, directions and relationships to a particular habitat.

Mr. Adams: Do we need to mention genetic, then, in your view?

Prof. Scudder: I think you need to mention species, subspecies and genetically distinct geographical races and populations, because that will cover the fish runs. But with respect to the meta-populations - and I mentioned this in terms of the large mammals - you need for survival the minimal viable population, usually calculated at 500, because it's based upon survival calculations for 200 years. It's based upon the structure of the species.

A large predator needs lots of area, 150,000 square kilometres. You're never going to get that in one area. You can get the same thing by arranging for population interbreeding. You still did it with 500 animals, but by having an area here, an area here and an area here, a landscape concept using small sub-populations, which is the meta-population, all can get together when the requirements are to get gene flow and operate as a whole.

It allows you on a landscape scale to put aside the landscape side to get that 500 minimum viable population without having to, in some of the calculations, put aside a third of Idaho.

Mr. Adams: How do we capture that?

Prof. Scudder: I think by using the term meta-population, which has a specific meaning in scientific circles. The whole of COSEWIC people would understand exactly what that is, because if you're putting recovery plans in place for any of the larger animals - ungulates and the rest of it - you must plan on meta-population dynamics and planning.

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You could never do it in an area. You will never have enough land. You will never have enough available land to put aside in a way that's not going to cost you the earth and interrupt economic viability and all the rest of it. You have to plan within the limits you have; and it can be achieved in a meta-population concept. This is not a concept you need to apply to some of the smaller organisms, but for the big things you can never get away without it.

Ms Murray: On what wording we're going to use, get rid of ``residence''. It doesn't fit the bill here. Make it either ``habitat'' or ``critical habitat'', but use whatever it is consistently throughout, because you have them mixed up and it leads to ambiguity.

Then if a case is brought, the legislation has to be defendable on what its habitat is. I did hear Linda Nowlan's presentation, and the one Stewart Elgie suggested, the Biodiversity Convention definition, does seem to cover what we're looking at here.

About my description of the life web of the burrowing owl, what I was trying to illustrate is that this is a complex situation. We realize there's no quick fix here. The legislation is not going to fix all the problems, but by strong protection for an endangered species.... If you protect the habitat the burrowing owl needs, by definition you have protected the habitat of things such as the Great Basin pocket mouse, which could easily get overlooked, then by definition the habitat of those insects we were talking about, and there are a large number of endangered invertebrates.

Mr. Adams: I accept that, and you can use the word ``habitat''. What I'm after at this stage is to try to get wording that ensures this web thing you mentioned and so on are caught -

Ms Murray: I prefer ``habitat'' to ``critical habitat''. ``Habitat'' is understood by naturalists and biologists, and if it were defined in your clause 2 definitions as described by Linda Nowlan, the one in use in the biodiversity convention, I think that would stand up. Naturally you're not going to go to a region of forest and find a burrowing owl. We know what is meant by ``habitat''. I think that word is in common use. It's well understood, but it does need definition. If you use that definition, that would cover it. Skip the ``residence'' thing.

The Chairman: Mr. Steckle.

Mr. Steckle: I want to put this as a broad question. We have had reasonable success in bringing back the whooping crane, the whistling swan, and the peregrine falcon. We understand the numbers aren't great yet, but we've had success. Given at that time we didn't have the legislation we're now proposing, to what do you attribute the success of bringing back those species?

The second question had to do with an issue David brought to us in the first part about the Kermode bear. Is this bear a genetic oddity? If it is, can we hope ever to protect those kinds of species, creations? There are only a few of them. We have white deer. We have albinos. We have a white squirrel, which happens to find its home in one of my communities; no one knows why, but it happens to reside in a community and now they've made it a big thing in that community. People generally tend to want to protect those species just as a natural outcome of wanting to see them. Is it reasonable to expect we should be able to protect that kind of creature if it's a genetic oddity? If it's something that biologically happens occasionally, is it reasonable to put that into legislation?

Prof. Scudder: I can address the genetic oddity question. No, I do not think we should be protecting genetic oddities. That's why I was putting it down as a geographical race or population. The bears would fit that. Your odd white crow would not fit it, and that would exclude it. It shouldn't be based on a rare individual.

Ms Murray: About the whooping cranes and the trumpeter swans, one of the reasons they recovered was they stopped hunting them. These are both large species which were very popular targets. They stopped hunting them, and there was still sufficient habitat for these species, so they have recovered. In the case of those two species, I think it was more a case of the hunting pressure than the habitat-loss pressure.

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Just in case the conflict between agriculture and wildlife interests comes up, we have a very interesting situation down in Delta where we have trumpeters swans overwintering. We've formed the Delta Farmland and Wildlife Trust, which, following on municipal conflicts over how much land should be put aside for birds with those swans coming in and wiping out the winter wheat, we put together and obtained some money - some of it federal, thank you very much. It's proving a tremendous program in terms of farmers providing wintering forage for birds such as the trumpeter swan and some migratory birds, ducks and so on, and also benefiting in terms of soil conservation and so on.

It's a nice little working model of where, by working together, you can actually achieve the goals of both groups. Everybody is benefiting here. If you stay in a conflict situation it doesn't work so well.

So I think the main thing with those was that the hunting stopped. That doesn't particularly apply to a lot of the species extinction we're looking at now. It's more habitat loss.

Mr. Steckle: But the peregrine falcon was not a hunted bird.

Ms Murray: With the peregrine falcon it was the pesticides. Once the DDT was stopped they recovered. It still has habitat. In fact, the peregrine falcon is a very adaptable bird, as you know. It's found in cities and things.

Mr. Steckle: Yes, I know.

Ms Murray: In some cases, yes, that's sufficient, along with public education. Often it's something you can focus public education around.

Mr. Steckle: Okay.

Ms Carr: I would like to make a comment here. I think your question is a good question, but it begs a bigger issue. We have seen some marginal success in trying to bring back from extinction or extirpation a few species, but it has taken an immense amount of effort and human and financial resources to do that. As we move closer and closer to the edge of habitats, where we have very little of any particular habitat left, the number of species extinctions and the number of threatened species will go on the rise. That's happened everywhere around the planet. What's so important in this act is that you stop the situation from getting to that point.

The proposed act doesn't do it yet, because it doesn't emphasize the importance of habitat protection enough in a preventative way so that you don't end up having to put all your time into fining people and putting them in jail, with very expensive recovery plans, which I warrant as a society we would never be able to do. Those species would simply get lost. We would be the more impoverished as a society. The long-term implications for our planet are quite scary.

Mr. George: Further to the Kermode bear being like a white crow, it isn't true. It's about one in ten. It has quite a large range on the central coast, all the way into the interior to Terrace. I mean, maybe one in ten humans have red hair. So this is part of the genetic variability of the black bear species. It's quite unique. We want to preserve all the genetic variability, because it affects the long-term survival for a species. They don't end up having a fairly common trait like that expressed unless it has some survival value.

Mr. Steckle: Basically, all you can do with those species is protect the ones you have and expect there might be some others come along. But they do not usually reproduce in that -

Mr. George: Oh, they do. They've been around for a long time. They're part of the mythology of the natives. It's a particular kind of black bear. In fact, one in ten of the whole population comes out white, or creamy coloured. Nobody knows why that is, but it's certainly a high enough percentage that it isn't a deleterious mutation. Many of the deleterious mutations get eliminated, and usually a much smaller percentage of the population has them. In this particular case, it must add somehow to the survival of the black bears in that particular locale.

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Prof. Scudder: Could I interject? This would be included properly under the genetic polymorphisms. All populations have genetic polymorphisms. Usually you don't see it. It's variation that is there because it is maintained by the breeding system. It just so happens that this one is visual and you see it. But they are there in all populations.

The Chairman: We could certainly spend a lot of time on this very important aspect of the issue. Thank you, Mr. Steckle, for raising it.

Mrs. Payne.

Mrs. Payne: Thank you, Mr. Chairman.

Welcome to all of you. Since I come from the east coast, it will not surprise you that my comments and questions would relate to the fishery.

Two scenarios. One is that you're all aware of the demise of the northern cod stocks on the east coast. I think Ms Murray mentioned in her remarks that aquatic and marine species would probably be covered under the federal Fisheries Act, and that's probably very true. However, we do have a concern, and it's growing, about the kind of damage and devastation being caused to the fish breeding grounds and feeding grounds by reason of things such as scallop draggers and trawlers and ordinary fishing draggers. While the Fisheries Act may very well include protection against that sort of thing, I'm wondering, in view of the economics and the pressure on the department by the larger fish harvesting and processing companies, whether or not they would in fact be able to sustain that.

The other scenario I would like to mention is we've all seen the pictures of Brigitte Bardot with the cuddly white seal, and the terrible thing of killing those. Well, cuddly white seals are cuddly white seals only for two to three weeks. Then they become huge seals. We all know harp seals are no longer in danger.

We just had a case recently where over 100 seal fishermen were charged under a portion of the act that in fact is an ancient portion put in place specifically at the time when Greenpeace and other environmentalists were saying the harp seals were probably going to be killed off and would be extinct within a very short time if the seal fishery continued as it was. This part of the act is no longer applicable, but it's still there on the books.

These fishermen on the way out to the seal fishery were told by the enforcement officers that they were allowed to kill harp seals and that they were allowed to sell them. They have now found out that in fact under this very old part of the act, although they were allowed to kill them, they were not allowed to sell them.

I would like to ask whether or not you feel there should be some part of this act to cover those types of situations, and whether you feel they are adequately covered under the federal Fisheries Act.

Mr. George: Let me just start a little more broadly. The Migratory Birds Convention Act is a placebo. To my knowledge it has never protected any birds. The only protection it affords is to the nests of birds, and it's only during the active nesting season. I've asked a lot of lawyers about it and I've never seen one place where the birds are protected.

Likewise, the Fisheries Act, which purports to have the strongest environmental legislation we have in Canada, really hasn't protected very much fish, let me tell you. Especially the habitat protection sections of it have not. It's been tested many times in courts of law here. The defence by logging companies has been vigorous. They have the definition of what actually is a fish. You don't have to have a dead fish. Even then they get around it. I imagine you could stack up the court cases and they would fill this room with the stuff that's involved, failed fisheries cases where actually fish were damaged, fish habitat was destroyed, by logging companies, by pulp mills, etc. So you in legislation you have to have the intent that you really do want to protect the species.

I believe our salmon are going down the tube here in British Columbia. The only thinly veiled hope this legislation has is through the back door: that somehow you have races and populations and the federal government does have fisheries protection.

As for the harassment of harp seals and other animals, that's a minor problem. Maybe there's an economic problem here, but I don't think we're going to go back to an age of cruel leg-hold traps or killing baby animals for people's vanity purposes.

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We're in a deep crisis on this planet, and I wish to heck the politicians would wake up to that and create some acts that actually do protect species instead of worrying about political hay in their local areas.

Mrs. Payne: Thank you, Mr. George.

I'm asking a two-pronged question here. On the one hand we're protecting species, but on the other hand we're overprotecting a species that is no longer extinct. I think there needs to be a de-listing process, which I don't think is now included in the Fisheries Act or in fact in this particular act. I'm wondering whether you feel that this act should address that.

Mr. George: There is a section in there that deals with it. There are several sections in the particular act that deal with de-listing. I don't believe whitecoat seals are an endangered species. I'm much more familiar with bears. Of the seven species of bears in the world, there is only one left that has a healthy population, and that's our black bear in North America. As to the rest, the ones in the eastern countries are on the verge of extinction. There's just a handful left in the wild. Our grizzly bears are rapidly going down. We believe black bears are going to follow them unless we take more protective measures here in British Columbia because of the demand for animal parts.

The demand for the habitat of animals, for the parts of animals, for the use of the planet by humans, which basically wipes out the other natural residents of the planet, is overwhelming. Unless we in Canada protect their habitats and really have strong laws, we are not going to hang onto our biodiversity.

I don't care how many Mulroneys sign wonderful.... In December 1992 we signed this biodiversity convention. It was a wonderful convention, touted as the best thing that came out of the Rio convention. We were the first industrial country to support that. And what have we done? Five years later we're sitting around. You have an act here that's about the weakest pile of stuff....

I read it last night. I couldn't believe it. The last half of it is dealing with all of these fanatical fines and so on for destroying habitat. Every day the logging companies here destroy habitats. Every day we're diminishing our habitats for these rare species in the Okanagan. When are we going to do something about stopping this? When are we going to say that we really do want a law that is going to save our species?

The Chairman: Thank you, Mr. George. We are grateful for small mercies in Ottawa these days, and we try to make the best with what we have.

Are there other questions? If not, I have a few questions for Dr. Scudder and perhaps other witnesses.

Dr. Scudder, on page 4 of your paper you say that listing decisions must be made by scientists. Can we explore that together for a moment? Suppose the committee amends the bill to achieve exactly that. Having done that, though, don't you think there has to be, in our democratic system, some form of political accountability and decision-making beyond that? Would you envisage, once the scientists are given the power to make listing decisions, the insertion of a phrase that would give cabinet the power to reverse the decision, placing the onus on cabinet to explain to the public why? In doing that, we then would have a procedure that would be similar to the one adopted by the CRTC, the CTC and other arm's length federal agencies.

Prof. Scudder: I guess that's a theoretical possibility, but I would have thought a more satisfactory way to go would be to have the listing done on purely scientific grounds.

The Chairman: Yes, that would be acceptable, that would be fine. But once that is done, cabinet would still have powers to reverse the decisions, if necessary.

Prof. Scudder: But why would cabinet want to reverse a decision at that stage?

The Chairman: Because you leave the elected officials the final responsibility, if they see fit, to reopen a particular decision, thus making them accountable for that decision in case they decide to reverse it.

Prof. Scudder: But I don't see what information would be available in order to reverse that. The science is out there at the beginning to say that this is endangered. The status reports have already been done. You're basically challenging the science.

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The Chairman: For the very reason, Dr. Scudder, that scientists like the members of the CRTC or the Canadian Transport Commission are not elected representatives and therefore are not accountable to the public.

Prof. Scudder: I don't know how you get around that. I'm facing it as a scientist. The political aspects may override, but it strikes me that the listing process is an educational process, first of all, across the country. It's based upon science. This is the state it's in.

If it were then followed by an automatic recovery plan, there could be the situation where a political decision is made right up front not to save this species. That would be the decision then: ``It is economically impossible to do'' or ``We don't want to do it for some other reason''. That's the time when you question whether in fact you should go ahead with this.

But whether it is endangered or not can't be looked at in any way other than with the science. The decision afterwards is then up to the democratic process, if you make that decision not to go ahead.

The Chairman: That clarification is very helpful and I thank you for that.

Moving on to page 6, you state that to be effective, Bill C-65 must apply to species at risk no matter where they occur. Everybody would agree with you.

The political reality is that we operate within a federal system, because of geography and historical and cultural reasons. In order to achieve this goal, would you see it as a satisfactory approach to have the federal legislation contained in Bill C-65 mirrored by provincial legislation so as to achieve, by way of complementarity, this goal? In other words, the provinces would be urged and expected by the public and by way of federal-provincial discussions of concerned ministers to pass mirror legislation to the federal.

Prof. Scudder: I would say yes, as it applies to species that are confined to provincial areas, but when the species is occupying an area beyond the provincial limits, then it's a federal responsibility.

Similarly I would not like to see the province restrict its application within the province just to provincially owned lands - crown lands - because again, a lot of species are on private land. My experience in dealing with the public is they really are interested in this, and if it's on their land, many of them are pleased. Sure, there are some economic problems that one can get around. The American experience has shown that most of those are not a problem; 90% of the time you can work around it, providing there is early assessment of the situation.

So I would not see that one could have parallelism, because it still then comes down to whose jurisdiction the overriding administration falls within. If it's across two, then it's federal.

The Chairman: On land, the overriding jurisdiction is provincial.

Prof. Scudder: What I'm saying is if it's left to the provinces, they do not have the capacity to save a species if that species occurs outside of that province as well.

The Chairman: Why should a province not have the capacity to do so?

Prof. Scudder: Because they can't govern what's happening to the population as a whole when half of it is in another province.

The Chairman: Oh, you're talking now of interprovincial.

Prof. Scudder: That's right.

The Chairman: All right.

Prof. Scudder: I don't think provincial legislation could deal with interprovincial species.

The Chairman: Well, you could have neighbouring provinces passing mirror legislation to achieve that.

Prof. Scudder: In the states where that's been done, you find most of the jurisdiction problems are because their values are different and their administrations are different, and by the time you they any agreement, the species is gone or is even worse off than it was before they started. Timely response is an important aspect.

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Ms Carr: Excuse me. Could I respond to that question?

The Chairman: Very briefly.

Ms Carr: If there's mirror legislation, that mirror legislation, which is a way around the legal opinion problem, has to be -

The Chairman: No, no, it's not a way around; it is a way of realizing the complexity of our Constitution.

Ms Carr: But it is a way to cover all the lands across the country.

The Chairman: Yes.

Ms Carr: I really believe strongly, though, that it should be presented with a safety net clause. Mirror legislation can be in existence, but if a government level is failing to do something, the back-up is always the federal government.

Also, then, it would be incumbent upon the federal government to make this legislation absolutely the strongest possible legislation. If you are asking for other jurisdictions to mirror this and if other jurisdictions include provinces that have roles over habitats and lands, then a requirement to protect habitats and lands ought to be part of this legislation.

The Chairman: Thank you.

Professor Scudder, please amplify by way of an example this very interesting sentence on page 6 of your brief:

Experience elsewhere has shown that where an endangered species depends on private lands, the needs of the species in almost all cases can be met without significantly affecting the use of the land, or livelihood of the owner.

Could you give us some examples?

Prof. Scudder: I brought with me the analysis of the performance of the endangered species legislation in the States. I think it's already been filed.

The Chairman: Could you illustrate it with some specific examples?

Prof. Scudder: I don't have them at my fingertips, but I believe it is in the analysis that was handed to you earlier.

In fact most of the forward planning has been able to accommodate them. The ones where it hasn't are the cases of the burrowing owl and a few of the fish.

The Chairman: Fair enough.

Could any member of the panel perhaps give us the benefit of their comments on paragraph 36(1)(a) as it is presently written? It is the application of prohibitions on page 16. It says the non-application of the law would come into force when it comes to:

(a) activities authorized by or under any other Act of Parliament for the protection of national security, safety or health, including animal and plant health.

Could we have some comments on that exemption?

Ms Murray: The exemptions are way too broad. You can think of absurd examples and even some common ones, such as ``These trees have to be cut down because they could fall or branches could fall and injury could result'', or ``We have to control badgers on our land because their burrows are breaking up the ground'', and so on. There are lots of situations where it would be quite easy to find an exemption.

Having it so broadly listed, that's going to be the loophole everybody uses. You can almost always think of some human need that's going to come first. I'd like to see it tightened up and become much more clearly and precisely defined. And COSEWIC should be brought in on this so the advice of COSEWIC is taken into account in terms of whether or not these exemptions could apply.

As well, as to the exemptions in subclause 36(4), which are for handling the species at risk, it's not totally unheard of that even scientists handling species and studying them can stress the species. There are examples of that.

So the whole thing should be really tightened up. Only highly qualified people should have anything to do with a creature as rare as an endangered species. I'd like to see clause 36 much more detailed.

The Chairman: Thank you.

Prof. Scudder: Could I respond to the question about whether or not this act should deal with some of the other populations elsewhere that are threatened?

This act is responding to species that are in difficulty. Somewhere there has to be more emphasis on looking after species before they get into this situation, because this is really a last-resort legislation.

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As for the whole idea of habitat landscape preservation, now in the province of British Columbia, for example, according to the Brundtland Commission, 12% is what land you should put aside in order to save everything. That 12% is not a scientific figure. It was pulled straight out of the air when there were some discussions in the open at the Brundtland Commission. Jeffrey McNeely was asked how much we should put aside, and he pulled it out of the air. He said ``Oh, three times what we have now''. Somebody did the sum and it came to 12%. That is not sufficient landscape to save anything.

What one needs is in fact a greater emphasis on habitat preservation on the landscape scale across the country outside this act. That's far more important in saving species and preventing species from getting down to this level.

The Chairman: That's an important point you make.

We can only deal with what is before us. Maybe something could be done on the preventative policy side by way of inserting an amendment. If you come across an inspired moment with some language you would like to send us, we'd be glad to look at it. This vehicle is coming by fast, and another opportunity will not come for many years, so you'd better put forward your thoughts now by way of a proposed amendment.

Well, then, we thank you all for your input again, for your papers and briefs and answers. It was extremely helpful.

This concludes our morning session. This committee now remains in this room to meet with Environment Canada officials in camera over lunch until 1:30. The public is invited to return here at 1:30, when we'll proceed with the witnesses for the afternoon.

We thank you very much for your participation.

We are adjourned.

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