STANDING COMMITTEE ON
ENVIRONMENT AND SUSTAINABLE
COMITÉ PERMANENT DE
L'ENVIRONNEMENT ET DU DÉVELOPPEMENT
[Recorded by Electronic Apparatus]
Tuesday, April 3, 2001
The Acting Chair (Mr. Gar Knutson
(Elgin—Middlesex—London, Lib.)): I'd like to thank
everybody for joining us today. My name is Gar
Knutson. I'm substituting, with the consent of the
committee, for the chair, the Honourable Charles Caccia.
Gentlemen, the plan is that anyone who wants can make
an opening statement. There's no predetermined order.
I'll just go with the names as they appear on the
There are two housekeeping matters for the
committee members. The parliamentary secretary has
advised me that she'd like to bring in a notice of
motion when we're finished with our witnesses, so
you can add that to your agenda.
The clerk has asked that I notify you that for
tomorrow's meeting it would be good if we could have a
decision on our budget for the year starting April 1,
so you can take notice of that as well. The budget
was sent to you this morning.
Gentlemen, if you could start with Mr. Beauchamp,
introduce yourself, say where you're from, and then
we'll go back to Mr. Beauchamp for an opening
statement. I would suggest you keep your opening
statements to—I don't know how many people are planning
on making them—about five to ten minutes. We have the
room booked until 11 a.m., which will give us a good
opportunity for questions and dialogue.
Mr. Pierre Beauchamp (Chief Executive Officer, Canadian Real
Estate Association): Good morning, Mr. Chairman. My name is Pierre
I am chief executive officer of the Canadian Real
This is Mr. David Humphreys, our federal affairs
adviser for the Canadian Real Estate Association.
Mr. John Hachey (Chair of the Federation of Canadian
Municipalities' Standing Committee on Environmental Issues, City of
Lachine): Good morning. My name is John Hachey and I'm a municipal
councillor for the City of Lachine.
I am also president of the environmental issues
committee for the Federation of Canadian
Municipalities, and president of the Partners for
Climate Protection program of the Federation of Canadian
Mr. Stan Klassen (Chair, Land Resource Partnership,
Alberta): I'm Stan Klassen. I chair the Land Resource
Partnership from Alberta. I'm here with my colleague
to make our presentation respecting the Species at Risk
Mr. Peter Miller (Co-Chair, Land Resource
Partnership; Alberta Chamber of Resources): Good
morning, Mr. Chairman. I'm Peter Miller. I'm
representing the Alberta Chamber of Resources and the
Land Resource Partnership.
Mr. Bob Woolham (Director, Ontario Property and
Environmental Rights Alliance): I'm representing the
Ontario Property and Environmental Rights Alliance on
behalf of Bob Fowler, who regrets that he couldn't
be here to attend the committee hearing today. I'm
representing that alliance in the context of a director
of the organization.
I have a 360-acre farm that produces calves a little
south of the city.
The Acting Chair (Mr. Gar Knutson): Welcome.
Mr. Pierre Beauchamp: Thank you, Mr. Chairman.
The Canadian Real Estate Association represents some
64,000 members who practise in all parts of our
Many of our local real estate boards—we have
about 112 in Canada—cover vast areas, and our members
list properties for sale in rural and wilderness areas.
But we represent a lot more, Mr. Chairman. We
represent a significant number of persons in Canada
when they buy or sell residential real estate.
When you bought your first home, chances are that one
of our members represented your interests. As we
speak, our members are out there representing
first-time home buyers today.
Through the multiple listing service, a cooperative
listing system used exclusively by members of real
estate boards in Canada, by realtors, there were some
400,000 property transactions last year representing
economic activity totalling $61 billion.
So we know that land is important to first-time home
buyers and to all buyers. Ultimately, it's really the
land that defines us here in Canada.
We're here to tell you not only that the land must be
protected, but what goes into the land—money, time,
resources, sweat, and tears—should also be protected.
Yes, species should be protected. We agree with that.
But so also should the owner or the occupier of the
land. They should both be protected, whether it's a
white-headed woodpecker in part 3 of schedule 1 or a
family with two children, a cat, and a dog.
To speak plainly, we're giving the white-headed
woodpecker very specific rights in this act, but the
rights of a Canadian family of four, in our view, are too
vague and are lacking in definition.
We submitted a brief on Bill C-33 last May. I repeat
today two fundamental points in our submission.
First, our members support legislation to protect
endangered species, and second, they believe the
cooperative approach the government is proposing in the
bill before the committee is the correct one.
For nearly 20 years, members of the Canadian Real
Estate Association, realtors in Canada, have actively
supported measures to strengthen property rights in our
country. Our submission outlines the way in which both
the previous and the current bills fail to respect
property rights and circumstances when an owner or an
occupier is deprived of the use of his or her property.
The report of Dr. Peter Pearse on compensation
makes several recommendations that relate directly to
the issues we have raised. I'd like to spend most of
my time today dealing with those recommendations.
In our submission we criticize the original draft
legislation for failing to define the term it used with
respect to compensation. In particular,
“extraordinary impact” was not defined. It was the
key to determining when an owner would be eligible for
Dr. Pearse answers the question. He says there must
be significant adverse effect on the property. He goes
on to suggest that a loss of more than 10% of one's
property value would satisfy the condition of
extraordinary impact. So far so good. That may be a
But when the 10% threshold kicks in, Dr. Pearse
proposes that landowners be compensated for only 50% of
their losses. They've already been required to absorb
the 10% loss. Now they're asked to shoulder half of
the remaining loss.
He justifies this limited approach by claiming
governments and courts in Canada have historically
tended to draw a distinction between outright
expropriation and restrictions on land use. He says
compensation is paid on expropriation and generally not
on restricted land use. He uses this claim to justify
limiting compensation for the potential restrictions
under this legislation.
We have a problem with this line of reasoning. Our
expert advice says restricted land use is
expropriation. We therefore take issue with Dr.
Pearse's claim that historical precedents justify
arbitrarily limiting compensation today. We know that
arbitrary land-use restrictions are rapidly increasing
and that they are the major property rights concern
in our country today.
It's arbitrary and unfair to apply the same
compensation formula to all losses over the 10%
threshold. If an owner loses 20% or 25% of value, then
compensation for 50% may be seen as reasonable.
However, when the land loss is 90% to 100% of value, we
fail to understand, Mr. Chairman, how the same
compensation can be fair. In addition, one owner may
be affected very little, or not at all, by the
deprivation of the use of, say, five hectares of land.
Another owner, on the other hand, may be counting on
five hectares of his property as part of a retirement
income package. The deprivation, in that case,
seriously affects his financial plans. The Pearse
formula applies equally, as you know, to both examples.
The just and fair solution calls for a means of
examining each individual case, assessing the burden of
the proposed restriction, and then determining fair
compensation for that owner. If, as the government
assures us, involuntary restrictions will only apply
rarely, it would then be possible to design case-specific,
rather than arbitrary, solutions.
Now I return to the principles of the Pearse report.
The fifth principle states that property rights must be
respected, and by respected we mean compensated. Just
as there is no taxation without representation, there
should be no expropriation without compensation—it
follows. If your home is bulldozed because of a new
highway extension, you get your house back in money
terms. That's what we want here too, not for us, but
for the people across Canada who are your constituents.
For many years, as you well know, the Canadian Real
Estate Association has campaigned for an amendment to
the charter to entrench property rights in section 7.
Frequently we were told by both federal and provincial
representatives that a constitutional guarantee was not
required because property rights were well protected in
statute and common law. We ask, where in Bill C-5 are
all these protections for individuals regarding state
action that affects their property? They are simply
We therefore recommend the following change to the
bill. We suggest that subclause 64(1) should be
amended to read as follows:
The Minister may provide compensation to any
person for any suffered loss as a result of impact of
the application of section 58, 60, or 61...
It's unacceptable that the legislation enshrines in
law, without definition, the term “extraordinary
impact” with respect to compensation, while the
definition is left to a consultant's report that may or
may not be acted upon ultimately.
Our proposed change removes the equivocation and
states that compensation will be paid for any loss as a
result of expropriation. In our submission last year
we were concerned that a landowner, under this
legislation, would be left with the right to battle in
a closed, bureaucratic process, at his or her own
expense, for a measure of compensation, with no
assurance of success and no means of appeal.
The seventh principle of Dr. Pearse's report states:
7. Policies, programs and procedures should be clear,
transparent, and provide as much certainty as
The eighth principle of his report states:
8. Administrative arrangements should be
simple, avoiding costly procedures and burdensome
We strongly endorse both of
these principles. We believe they should be reflected
in the legislation, Mr. Chairman, rather than left to
regulation or a compliance manual, where they are much
easier to ignore.
I'd like to end by noting that we all have a
responsibility to the land, to what lives on the land
and in our waters. But we also have a responsibility
to the people who live on the land. It's about
balance. Just as nature and the environment are about
balance, there should be balance and fair dealing with
people's rights. If you take away people's rights,
compensate them fairly—that's basically all we ask.
In fact, many of
you have probably already met with a representative
from our association during our political action
exercise last week. We have made this one of our most
important issues this year. We asked you, when we went
through visitations with 150 to 170 members of
Parliament last week, to endorse this particular
proposal and to deal with fair compensation.
Thank you, Mr. Chairman.
The Acting Chair (Mr. Gar Knutson): You're welcome,
and thank you very much for that presentation.
Mr. John Hachey: Good morning again.
As I stated in my first remarks, I am from the
Federation of Canadian Municipalities. I believe most
of you are aware that this organization represents over
1,000 municipalities across this country and is
dedicated to sustainable communities.
Within FCM I am the president of the environmental
commission. We had within that structure a
subcommittee relating to this brief. Unfortunately,
the chair of that subcommittee could not be here today,
and so I will later call upon the resources of our
technical staff in responding to certain questions. I
hope you have available to you shortly the complete
brief FCM is giving on this documentation.
I would like to start the presentation by stating that
FCM supports the principles and goals of the Convention
on Biological Diversity and wants strong
legislation to meet Canada's international commitments,
without risking resource-based communities and the
Canadian economy. This is a very difficult job. This
is the delicate balance we have between the environment
and the economy.
There are many positive elements that FCM supports in
Bill C-5, and I would like to highlight five areas of
The FCM supports Bill C-5's cooperative approach with
its many efforts for transparency in areas such as
early consultation during the development of the
recovery plans, the public registry of decisions, the
inclusion of socio-economic factors in the five-year
report on SARA, and the establishment of a public round
table after two years.
FCM supports the promotion and funding of stewardship
incentives and compensation for negative economic
impacts on protection of critical habitat.
FCM supports ministerial accountability for listing of
FCM also supports the respect for the shared mandate
of federal-provincial governments in conserving
And finally, FCM supports the removal of civil suits
provisions within the act.
As much as we believe there's balance within our
presentation, and there are several areas we're
agreeing on, there are other areas we see as needing
amendment. FCM believes further amendments will be
needed in SARA to get widespread backing from Canadian
municipalities. In most cases these only require
strengthening of existing sections in the act. In
others FCM urges the government to consider amendments.
The major concerns for this presentation are
provisions for compensation and funds for
implementation; protection for species at risk and
their habitat under federal jurisdiction; prevention of
species from being at risk; the listing of species; and
the round table provisions. I will go into these five
areas in greater detail.
First, the implementation of the principles of sharing
of benefits and costs in conservation of wildlife is a
key concern to FCM. Notwithstanding the report,
previously mentioned, by Dr. Pearse on regulations
regarding compensation, FCM recommends that
compensation should be made for properties lost or in
regard to any other negative economic impact resulting
from recovery processes on how the protected species is
at risk. The notion of extraordinary loss is not
acceptable. It is subjective and could result in
long-term legal battles.
It also infers that some loss without
compensation is acceptable, thereby violating the
principle of shared responsibility.
Other principles should be written into the regulation
to guide the subsequent regulation.
We believe that fair market value should determine the
amount of compensation. There could also be a situation
where you have an agreement between landowners on
The period for the payment of compensation is a
concern. The right to appeal the value by either the
landowner or the crown and the timeline for all steps
in the process of appeal, from negotiation to
mediation to binding arbitration, should also be
written into the bill.
Those eligible for compensation should be written into
the bill. The federal contribution to an endowment
fund should be legislated in order to avoid the
transference of responsibility to landowners and to
ensure the ongoing funding process of the species
The current proposed allocation of resources for the
species at risk program is totally inadequate. A major
investment is needed, primarily for
the stewardship initiatives and the expertise to advise the
minister on decisions.
The second area that we feel needs to be amended is the
required protection under federal jurisdiction.
The protection of critical habitat and the
implementation of action and management plans
should be mandatory on the federal lands, facilities,
and operations, including crown corporations.
Guidelines, which do not have the force of law, should
be avoided. All decisions, however minor, by all
competent ministers should be listed in a public
registry for complete transparency.
SARA should not be a residual power but should
override other federal legislation where the same level
of protection is not provided.
The third area that we believe should be amended
relates to the provision to prevent species from becoming
at risk. The background principle of necessity of
habitat for species conservation should be applied to all
species, not just those at risk.
The ecosystem and multi-species approach, clauses 41 and
67, should be mandatory. Consideration of the
interaction of all species, including human, is
required to prevent species from becoming at risk.
The fourth area of concern to FCM is the listing of
species. The extension of the probations immediately at
the time of the listing of the endangered or
threatened species under federal jurisdiction by adding
interim mitigation measures to maintain critical
habitat would be advisable.
This might be a buffer zone around the minimum critical
habitat or adaptive measures for management.
The last area of concern is the round table
provisions. The round table provisions in clause 127
state that it must be stakeholders, not just interested
Within the areas that we are concerned with, we would
also like to emphasize the issue of compensation. When
municipalities are dealing with lands that they have to
expropriate, they should use the term “fair market
value”, and that is what we believe to be the logical
thing to be used within this bill.
Thank you very much.
The Acting Chair (Mr. Gar Knutson): You're
We'll move to our next group, Mr.
Klassen or Mr. Miller.
Mr. Stan Klassen: Thank you, Mr. Chairman.
I will give you just a wee bit of background
with regard to the activity of the stakeholder coalition,
Land Resource Partnership in Alberta,
over the last four years, and my
colleague Mr. Miller will address the legislation more
specifically following that.
I'm the chair of the Land Resource Partnership. We
have a stakeholder representation of about 15 groups,
including, among others, the Alberta Association of
Municipal Districts and Counties, the Alberta
Chamber of Resources, many cattle industry groups,
the forestry industry, and the Alberta Irrigation
We represent in the order of 525,000 hectares—or, to
put it another way, 1.3 million acres—of land within
the irrigation districts of Alberta, constituting about
70% of Canadian irrigation. There are another 250,000
acres, or 100,000 hectares, of irrigated land under
what we call private licence, for a combined total of
in excess of 625,000 hectares of land. That's a lot of
habitat. Needless to say, we feel we have a large
stake in what SARA actually looks like in the final
We support the SARA legislation in principle, but we
have concerns with regard to the proposed sanctions
Many stories come from the land of people pausing to
enjoy the flight of eagles and the call of aquatic birds
or having a swift glimpse of a running canine. These sights
and sounds are part of the lives of rural Albertans,
and I have no doubt we would be poorer for the loss of
Having said that, we have examples of landowners who
voluntarily practise good stewardship. Take, for
example, the Eastern Irrigation District at Brooks and
the burrowing owl habitat we have there. Several
years ago it was our privilege to take a number of
senior Environment Canada people to the site, where
they actually saw the endangered species, the burrowing
owl. It moved them from theory to practice. They
actually exist, and they have existed there for a good
many years under a voluntary regime.
The Eastern Irrigation District has worked in
partnership with various governments and conservation
organizations through their participation in the
national burrowing owl recovery team. The districts
and many individual landowners worked with Ducks
Unlimited to preserve habitat for aquatic and
upland birds on their land.
After 60 years of this type of cooperation, southern
Alberta boasts 33,000 hectares, or 80,000 acres, of
wetlands that have been created and are constantly
being managed under this cooperation. We have a record
of conserving species through cooperation. Although
they're more than happy that their labours benefit so
many Canadians, they can't understand why those same
fellow countrymen keep asking them to increase their
sacrifices to benefit our great nation and expect them
to do it out of the goodness of their hearts
We want to cooperate, but the cost of failure may be
too high. If you promise to punish them if their
labours fail or inadvertently have a detrimental
effect, then we can be sure that this approach will do
more harm than good. We don't need a law that pursues
people. We need a law that protects the species.
Let me turn, then, to Dr. Pearse's report. His
recommendation that holders take personal
responsibility for the first 10% has already been
addressed. We think that threshold is too high.
Furthermore, we think that expecting the land- or
resource-holder to bear an additional 50% of the
remainder is patently unfair. It simply does not fall
within the parameters that Dr. Pearse sets out in
his initial report, that is, fairness and equitability.
One of the definitions of “fair” is equitable. Is it
equitable to ask landowners to bear the lion's share of
costs related to preserving wildlife diversity for the
benefit of all Canadians? Fair also means principles.
What is the belief behind asking a small portion of the
population to undertake such an important
responsibility for biodiversity in Canada, and what
kind of message does that send to all other Canadians?
Sustainability has long been the watchword in these
sectors. Accepted practices change constantly with new
information. What you did yesterday may today turn out
to be counterproductive to your goals. For this
reason, under strict liability offensives, land and
resource owners fear committing an involuntary action
that could lead to prosecution, very high legal fees,
and in fact, potentially, imprisonment.
If you want Canadians to embrace SARA, please consider
fair, equitable, and principled legislation that
encourages cooperation, allows for mistakes—after all,
we are dealing with human beings—and places the
responsibility for species protection and enhancement
on the broadest back the country can manifest. We
support conservation and habitat protection, but we
fear punitive measures that could cost endangered
species that vital protection.
With that, Mr. Chairman, I will turn it over to my
colleague. Thank you.
Mr. Peter Miller: Mr. Chairman, the bill before
the committee today tests the approaches that are
options for governments in changing public behaviour.
We characterize them as carrots and sticks. We
recognize the bill provides many carrots to encourage
people to do the right thing. Unfortunately, it also
contains a very big stick, as Mr. Klassen mentioned.
We feel it's something that is going to discourage and
frighten people away from availing themselves of the
inducements and the carrots in the legislation.
The bill is very vague and uncertain in the language
it uses. It defines a crime in a way where it will
often be impossible for a person to know whether he's
committing it. In many instances, the crime will
result from what is otherwise legal, authorized, or
The experience in the United States has taught us that
the very act of conducting a forestry operation,
grazing cattle, or ploughing the field will be
construed as harming an individual of a species or
destroying its habitat.
Inevitably it will be argued, as it already is today,
that the burning of fossil fuels will harm plant life,
and therefore endangered species of plants. It will
be almost impossible for the average citizen to know
what endangered species exist in a given area and what
they or their residents look like at various stages in
their life cycle.
Clause 124 is one provision of the legislation that
is particularly troublesome. The minister may
intentionally and purposely withhold information from
property owners and residents when a species exists in
their area. This is very troublesome when you consider
the legislation is construed as criminal law and the
consequences can be a term of imprisonment.
I don't know how the lawyers and the justice committee
can justify it. I hope the committee will question
them on clause 124 of the bill. It's very contrary to
principles of fairness and to our understanding of the
way the law ought to operate.
There are extreme enforcement provisions in the
legislation. We summarize those by drawing to your
attention a very low threshold for the criminal
offence. It can be accidentally causing harm to a
species. That is coupled with a very broad definition
of an individual of a species, which includes one blade
of grass, a seed, or pollen.
How does one demonstrate due diligence from preventing
a seed or pollen of an endangered species plant from
blowing across this path into a flare stack, into a
dugout full of water, or into any kind of operation?
Even the windscreen of your car is an extreme example
where an individual could be caught with a dead species
on the windshield and is stopped by the police and
questioned about their due diligence.
It's coupled with a reverse onus of due diligence,
where one has to demonstrate the activities were
reasonable in the circumstance. They took all
reasonable care to avoid killing this species that, in
certain circumstances, they would not even know about.
Finally, that is coupled with a very severe penalty of
$1 million and five years in jail.
These are very frightening prospects for individuals.
The problem with the legislation is it deals with a
subject that is very arbitrary, very random, and very
capricious. These species can come and go across your
path and you wouldn't know. You wouldn't necessarily
know what they look like and could not take any steps
to avoid harming them. Yet in harming them, you could
become a criminal. This is very frightening for every
urban dweller who goes for a walk on a path with his
family and accidentally steps on a weed.
Mr. Klassen and the others in fact have talked about
compensation. Compensation is a very big concern.
Clearly, Dr. Pearse's proposal is one that is
unacceptable. It creates a BATANS, a best
alternative to a negotiated settlement, that is so
unattractive it drives people to a negotiated
We don't have difficulty with a negotiated settlement.
Our expectation, however, would be that in those
negotiations, there would be a fair consideration given
to the loss suffered by an individual property owner,
whose land has to be restricted in its use because of
the presence of an endangered species.
It is our belief, however, that a well-managed program
planned properly with stakeholder consultation will not
call for a great deal of compensation. We think the
better alternative, and we believe the goal of the
government, is to work on a cooperative model to find
solutions and options that do not carry a very large
price tag. These options must respect private property
rights, and we believe they will be the most successful.
Compensation then becomes a governor that forces
society to select options that are reasonable and
affordable. Absent this form of accountability and
society's true cost of achieving this goal is masked.
It is unfairly and invisibly transferred to
individuals. We certainly believe the cost of this
program must be borne by society as a whole because
we're dealing with a social value.
We have a number of specific recommendations in our
submission. I will summarize some of them very
The bill makes a distinction between cooperation with
some groups and consultation with other groups. It is
our expectation, certainly in the development of action
plans from whence critical habitat is derived and
defined absolutely, it will absolutely involve the
property owner whose property is the subject of that
classification. We know the Supreme Court of Canada
has said in certain circumstances that “consult” does mean
“consent” when personal rights are affected. It is
our expectation that even though the legislation
requires only consultation where possible with property
owners and stakeholders, this in fact means cooperation
We comment very specifically and briefly on the role
of the provinces in the national accord, and this is in
the context of the federal safety net. The federal
safety net is a very troubling part of the bill. It is
based on the assumption that provinces are not doing
their job. It is our belief that it is not the role of the
federal government to judge the adequacy of provincial
legislation, yet the federal safety net has a trigger
on that very point.
We would recommend those two specific triggers,
subclauses 34(3) and 61(4), be removed—the first
being the safety net trigger for species and the second
for habitat. They deal with triggering the federal
safety net in the face of opposition from a provincial
government. We believe if there's any question about
the adequacy of provincial initiatives, it should be
settled at the national accord level, not unilaterally
by the federal minister.
We recognize and support the government's position in
the bill on government accountability. We certainly
believe the duly elected officials who are accountable
to the public must make the decisions about
consequences of legislation that result in criminal law
sanctions against individuals.
For this reason we feel very
strongly that the COSEWIC listing process must not be
automatic in the legislation, and it must not become an
automatic list in the hands of the scientists. The
legislation properly puts that decision in the hands of
elected officials of cabinet, and we support that
In the same way, we believe government accountability
must be tested through the democratic process. Bill
C-65 made provision for civil suits, for a civil cause
of action, and we believe some groups will be arguing
before you that this provision should be returned to the
bill. That is a vigilante action that is based on the
assumption that governments are not capable or
willing to do their job. We believe you cannot write
legislation based on that premise.
Similarly, the proposal for alternate dispute
resolution is based on the same premise, that
government is not capable of doing its job. Some
alternate proposal must be developed that allows the
public to step in and call for accountability.
We do not support either of those proposals.
In short, our main concerns are that the offences in
the legislation are characterized as strict liability
offences. These are the hallmark of regulatory
offences, and because the federal government is claiming
its criminal law power to take jurisdiction over lands
that would otherwise be provincial, we believe this
standard of offence is not appropriate. I think all
Canadians would recognize that it's appropriate to go
after individuals who intentionally, wilfully, and
maliciously hunt down an endangered species or destroy
its nest, but I would think it offends Canadians' sense
of fairness and justice to apply criminal sanctions to
an individual who accidentally and unknowingly
disturbed or destroyed a nest or unintentionally and
accidentally injured or harmed a species of animal.
We believe one of the provisions of the bill that
really provides the greatest carrot and the provision
that is essential to give meaning and value to the bill
in terms of the cooperative model that it intends to
follow is that the exemptions have to work. The
property owners and stakeholders will participate in
planning processes and help to identify habitat and
modify their operations to ensure harm does not arise
to endangered species, but they must know in those
circumstances that when they cooperate, the
consequences of failure, as Mr. Klassen mentioned, are
The act does provide for exemptions in specific
circumstances. I would draw your attention to
subclause 83(4) of the bill, which is the
critical clause, and you need to
understand that this clause provides
exemptions for activities that are contemplated in
action plans. If I'm a property owner and I sit
down and write an action plan for my quarter section of
land, the expectation is that when the plan calls for
me to use this portion of the land but not that
portion of the land, when I use this portion of
the land, I will gain some measure of protection or
control under the legislation.
Subclause 83(4) ties in a very narrow restriction to
that exemption, by adding the words, not only to
activities that are approved in an action plan but also
and who is also authorized
under an Act of Parliament to engage in that activity
You need to understand that this offers no protection
to the agricultural industry. It offers no protection
to provincially regulated activities, which are the
majority. What is very frightening about this is
that individual property owners and resource developers
will participate in the development of programs, but
they are still exposed to criminal consequences when
their activities are not successful.
We believe the legislation should not go in that
direction, and I would ask you to ask the lawyers from
the justice department why they added those words to
that subclause. That is a very narrow restriction, and
it takes away from the undertakings the government has
made to stakeholders that this bill will work for them
when they cooperate with the government in developing
a program to protect species at risk.
I have many more things to say, but I'll wait for your
The Acting Chair (Mr. Gar Knutson): Thank you for
Mr. Bob Woolham: I'd like to preface my remarks
with a couple of things.
I've spent about 35 years in the foreign service, most
of that in the trade commissioner service, the early
part in agriculture. With my family, I've lived in a
lot of different countries, including Japan, France,
China via Hong Kong, Jamaica, and several postings in
the United States. In all these areas, there are
certainly very different attitudes towards concepts of
ownership. Ownership seems to me to be a very powerful
motivator; therefore, I think sometimes we forget that
ownership, particularly the ownership of land, varies
from place to place, and that attitude, supported
or not by society, has a profound effect on where that
portion of society or civilization is heading.
The Ontario Property and Environmental Rights
Alliance, or OPERA, is made up of several Ontario
landowner associations. Most of these associations
resulted from actions by a provincial government to
restrict, without compensation, the use of land by
owners where it was deemed in the public interest to do
so. These restrictions applied largely to wetlands and
areas of natural and scientific interest, and now
wildlife habitat and endangered species habitat
designated by the province.
Most of these designations were without warning, and in
that context, I think there is indeed a great
communications problem. Nowhere in my
experience are the people who own the land consulted by
all the people, especially bureaucrats, who have an
interest in doing something with their property, and
I think that is very unfortunate.
OPERA members recognize that efforts to mitigate human
activities that harm wildlife species and diminish
biodiversity are important social goals. Our view is
that the cost of public goals should be borne by the
public and that those landowners who are made to
contribute to the public good should have clear access
to reasonable compensation.
When I talk about access, I
mean in some respects that is an appropriate
negotiable mix of different criteria. It might be
between a particular landowner and the choices or the
objectives of the other portions of society in dealing
with that. I don't think one size fits all in
this process. Indeed, there are many landowners who
would welcome an opportunity, with that kind of
support, to do a lot more in caring for their land than
I should mention as well that there is a great deal of
conflict between the various bureaucratic interest
groups that come to your land and talk about it.
Different agencies have different goals, and of course,
you are sort of the meat in the sandwich at the end of
In our view, the compensation proposals and
the process envisaged as set out in Bill C-5 lack
substance and fairness.
OPERA supports investment in biological research to
better determine the nature of the risks and how these
risks might be mitigated. There is more to the nature
of species than just trying to count heads. I mention
counting heads in the context that we talk and talk
about populations of species, but we don't really have
a census of what we're talking about. Indeed, even the
naming of species is sometimes fraught with a great
deal of scientific difficulty, particularly with new
modes of DNA classification that are coming on board.
I would also comment that, on this business of
counting heads, we have to recognize in nature that
whatever species we're talking about eats and gets
eaten. In many cases, it's not so much the land on
which that species happens to be found that counts,
but the food supply and who's pouncing on that
particular species. These have profound implications.
Therefore, it makes sense to me that the
research be directed to a better understanding
of what is really going to support a particular species
that might require some form of recovery.
A good example might be the loggerhead shrike, which
moved into Canada though farming. Loggerhead shrikes
like cattle, they like pasture, and they like thorn
bushes to hang their prey on. But they've
diminished—they're down to 55 breeding pairs in
eastern Ontario and Quebec, and we're told there may be
fewer than that. They also say there's a group of birds
that go with it, like the brown thrush, the Henslow
sparrow, and so on.
One wonders sometimes whether we'd have the bluebird
back if we had loggerhead shrikes. Well, maybe it's the
other way around; maybe there are no bluebirds left
because the loggerhead shrikes have eaten them. I might
just mention that even deer are eating songbirds now.
It sounds remarkable, but that is the case.
These population changes, and who eats what, are very
important, and they're factors that haven't really been
taken into account in many cases. There seem to be many
factors driving species at risk legislation.
OPERA's view is that science is of prime importance in
understanding the factors affecting adverse outcomes
and developing appropriate strategies to reverse them.
Therefore, OPERA supports public investment in
furthering relevant scientific study in these fields.
Nevertheless, the scientific dimension is part of a
much larger structure involving human cultures and
social, economic, and national and international goals.
I think we must acknowledge the fact that when we
refer to dimensions and talk about ecology, there are
many, many different levels. There are religious
levels and levels having to do with development, for
example—ones that really have nothing to do with
I'm sure you've heard of the bio-blitz, which is an
aid for those who would stop the bridge or
change something of that nature. In that
context, I think there needs to be a balance, and
achieving balance is the political dimension. OPERA
supports the provision in Bill C-5 that assigns the
task of judging wildlife risk to cabinet, rather than
to the council on endangered species.
Finally, OPERA is concerned about the potential damage
that may result from federal-provincial overlap in
dealing with species at risk issues and programs, in
provinces that will have these two sets of legislation
and regulation. It is OPERA's view that some mechanism
for providing appropriate adjustments or exceptions is
warranted to protect landowners from inadvertent
I draw your attention again to the fact that Ontario
already has an endangered species legislation on the
books, and regulations to go with it. As property
owners, we're affected by it every day.
The Acting Chair (Mr. Gar Knutson): Welcome, and
thanks very much for your presentation.
Ladies and gentlemen, we have about 55 minutes left.
We have another group coming at 11 o'clock and a fairly
lengthy list, so I'm going to have to restrict
individual questions and answers to five-minute rounds.
I'm going to rely on the clerk to be the timekeeper.
We'll start with Mr. Mills.
Mr. Bob Mills (Red Deer, Canadian Alliance): Thank
you very much. Thank you, gentlemen, for appearing and
giving us some insight into your concerns.
I'd like to ask you to comment on two areas. The first
one, which each of you has addressed, is compensation;
the second is enforcement.
In the area of compensation, Mr. Miller, I think you
might probably give us an example of a model for
compensation other than Dr. Pearse's. I think that's a
critical part of any issue, and I know you're
familiar with one other model that has worked very well
for 30-plus years.
You've also mentioned the warnings consultation.
I own some farmland, and I know that quite often the
planning is done long before they ever come to talk to
the landowner. That obviously creates serious problems
The second area is enforcement. It seems that when we
deal with farmers, ranchers, and law-abiding citizens,
we take great pains to make the offences very
great—we'll throw someone in jail for ten years, we'll
fine them a million dollars. But when we deal with
criminals, sometimes we have very small penalties.
It seems there's an imbalance there, and I would like
to ask for your comments on it—if you see the
enforcement part of Bill C-5 possibly becoming more
realistic, to fit the crime. Perhaps I could ask you
to deal with those two issues, please.
Mr. Miller, for the model.
Mr. Peter Miller: On the issue of compensation, as
I say, Dr. Pearse's report was designed to create
a BATANS, which is so unattractive that a purchase goes back
The oil and gas industry in the three provinces of
western Canada, including Alberta, has quite a bit of
experience with compensating surface-rights owners for
any interruption in their activities while an
oil and gas developer exercises its rights to recover
oil and gas from below the surface. The surface-rights
board has been functioning in Alberta and the other
provinces for many years.
A considerable amount of jurisprudence has developed
around fair compensation. There are recognized heads
of damage, and the jurisprudence has helped to clarify
what fair compensation ought to be. We propose a
model that ought to be considered. It is our
expectation that the government is never forced to the
point of last resort, of using its compensation
provisions under the act—those are similar to
We know that compensation is an unusual remedy in
the case of a regulatory taking because a property
owner is not deprived of the entire use of his land,
only a portion.
We would expect that clauses 12 and 13 of the bill
would be used by the government to negotiate with a
property owner for restricted use of the land—as Ducks
Unlimited has done for many years in western Canada.
This is another model of the fair application of
compensation principles that the agriculture industry
is very comfortable with.
The one model Dr. Pearse specifically rejected had to
do with compensation of private interests on crown
land. This is a very big issue in western Canada and
the north. We think it's a principle of fairness that
when individuals or corporations invest in endeavours
on crown land—such as agricultural or resource
development—they too ought to be compensated for that
loss. It's a private interest loss, just the same as a
feehold interest. The nature of the rights is
different, but there's no reason to draw a distinction
between the two.
Do you want to go through the panel on compensation?
Mr. Bob Mills: My other question was on
The Acting Chair (Mr. Gar Knutson): You have five
Mr. Bob Mills: Would someone like to deal with the
enforcement levels in Bill C-5, as compared to what
might possibly be less of a stick?
The Acting Chair (Mr. Gar Knutson): Briefly.
Mr. Peter Miller: The enforcement provisions in
the bill are very severe, as is the general nature of
environmental legislation in this country. It's gone
way out of control in proportion to other offences in
society. That seems to be the trend of environmental
legislation. This legislation is particularly
threatening because of the vagueness of the language,
and the arbitrariness, the randomness, with which this
offence can fall into your lap.
We think it's very unfair that Canadians might be
exposed to the threat of these types of criminal
sanctions for what would otherwise be lawful activity.
The Acting Chair (Mr. Gar Knutson): Thanks very
Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): I'll try to
make it quick, since we only have five minutes.
I have a question for Mr. Miller. First of all, may I
congratulate you on your brief which is quite comprehensive and
You note the following on page 17 of your brief:
The intrusion of federal law powers into provincial jurisdiction,
without the province's consent, is indefensible. It shows a lack of
respect for the provisions of the National Accord and the
In my view, this is one of the harshest observations a witness
could have made about this legislation. You go on to add:
and will inevitably give rise to constitutional challenges which
must be resolved in the courts.
The lawyers for the Justice Department are adamant that from
a legal perspective, they are totally immune to this legislation.
I'd like to know what possible basis there could be for a
Mr. Peter Miller: I think this question of the
federal safety net power is a very troubling portion of
the bill. There are legal opinions on both sides of the
issue, and it is clearly a point that will have to be
resolved in the courts. As a resource industry, our
plea is not to be involved—since we have been involved
in peer reviews and all kinds of
other decisions. If it's possible to refer it to the
Supreme Court of Canada, do that without involving any
The concern about the safety net is that it is
triggered by a review of the adequacy of provincial
legislation, which I think is very unfair and not
appropriate. Generally, our concern about federal
powers in this area is that they have claimed the
powers of criminal law, and in order to justify that, I
think they have characterized the issue of endangered
species as a crisis requiring national legislation.
We think this is a mischaracterization.
I think the
federal legislation would stand up to a court challenge
only if it were applied in the instance of the last
breeding pair of birds in a species. I think it is
unconscionable and insupportable to apply this
legislation generally to species at risk.
You will hear
from the Fraser Institute later on in your
deliberations, and they've done an analysis: we do not
have a crisis in this country; we have not seen a
species disappear in three generations.
By no means can this law be characterized as
criminal law power. The constitutional lawyers refer to
the Supreme Court of Canada's decision on Hydro-Québec
as a very narrow case dealing with toxic waste. I don't
think you can call a threatened species, which is
fundamentally a wildlife management issue, a “crisis”
that invokes the criminal law power of the federal
government. I think any issue short of the last living
species in this country would not withstand a
Mr. Bernard Bigras: My other question is for Mr. Hachey.
Virtually every witness talked about the application of the
legislation's provisions and about the use of the double safety
net. In the summary to your brief, you mention the provisions
respecting compensation. Naturally, you talk about expanding the
roundtable, but you say very little about how your municipalities
would apply the legislation.
In essence, you represent over one thousand municipal
governments. That is what you told us. Are you prepared to say to
your members that the federal legislation applies to municipal
lands even when provincial legislation is already in place?
Mr. John Hachey: In terms of support for Bill C-5,
we are looking at shared mandates between federal and
provincial governments. Within the municipal milieu,
we would also like to make sure that all the
stakeholders are involved. When we come down to
applying this law, municipalities are among those
I think this would be probably my best response
to that question—that the federal government's
jurisdiction and the act, as we read it, are transparent
enough, but that it has to have, in terms of the public
round table that you were referring to, our involvement
when it deals with municipal affairs.
Mr. Bernard Bigras: Therefore, members of your federation are
in favour of the use of the double safety net. Is that what you're
Mr. John Hachey: Yes.
The Acting Chair (Mr. Gar Knutson): Is that everything?
Mr. Bernard Bigras: Yes.
The Acting Chair (Mr. Gar Knutson): A brief response.
Mr. John Hachey: The answer is yes.
The Acting Chair (Mr. Gar Knutson): Mr. Comartin.
Mr. Joe Comartin (Windsor—St. Clair, NDP): Thank
you, Mr. Chair.
Mr. Miller, in regard to the opposition you've
expressed on the use of the criminal power by the
federal government, I'm not clear either from your
brief or what you've said today whether you are opposed
to any criminal sanctions in this legislation, as
opposed to saying it's just gone way too far with what
we have here.
Mr. Peter Miller: It's gone way too far. I think
the proper role for the federal government in
exercising its criminal law power is to characterize
the offence as a true criminal offence, which is a
mens rea offence. You know that endangered
species legislation came out of Africa where poachers
were going after elephants and rhinoceros, and we all
agree that kind of conduct and activity must be
stopped. That is the true focus of criminal law in this
country—people who intentionally go after endangered
species for profit or for trade.
The strict liability offences that catch all of us in
our day-to-day legal activity—one day we're doing
something that's legal, the next day it is by
definition a crime—is just very bad law to have in
Mr. Joe Comartin: So as long as there's a mens
rea component, you would accept that.
Mr. Peter Miller: Yes.
Mr. Joe Comartin: Okay. I want to jump over
We heard last week from some of the
other witnesses who have appeared before us about the
B.C. experience in terms of compensation in the same
area. The report we got at that time was a fairly
positive one. The funds that had been set aside
appeared to be more than adequate for the response to
the claims that were made. Are you aware of that
experience in British Columbia?
Mr. Peter Miller: I'm sorry, I'm not.
Mr. Joe Comartin: In your brief, you—
The Acting Chair (Mr. Gar Knutson): Is anyone
Mr. Joe Comartin: On page 5 of your brief you
indicated about mid-page that you didn't
expect—assuming a fair, reasonable compensation
scheme—the amounts of compensation would be large. Did
I read that properly?
Mr. Peter Miller: The assumption is that the
government will use proper consultation, planning, and
management. It will develop options in a very wide
area and each one of those options will have a price
tag, depending on whose rights are affected, what
resources need to be applied to the solution, what
changes need to be made to the land or whatever, or
what activity needs to be stopped. It would be our
expectation that the government would study those
options and select the one it feels it can afford or is
appropriate, assuming they are all equally effective,
and able to develop the result of protecting species at
Now there's no question if there is one critical lake
in the middle of the prairie and you happen to own that
lake that is essential critical habitat, we say that
land is such a valuable national resource it should not
be owned by an individual. It should be taken out of
the hands of an individual—essentially, make it a
But our fundamental belief is that this issue is not in
crisis in this country at this time, and it has not been.
In fact, we are going in the other direction where
we are managing our endangered species and have
been for 25 years, in spite of the newspaper accounts
in which people are saying we're finally getting some
endangered species legislation in this country. We've
been managing this issue for many years. We have very
good experience with this and we have every confidence
and expectation that we can continue to manage this in
a way that does not adversely impact activities on the
If you characterize the problem fundamentally as the
presence of people, the loss of habitat due to human
development, that's a very big public policy issue. I
think it should not be resolved under this. We cannot
make people criminals simply because we think that by
living in an area they are threatening species.
Mr. Joe Comartin: That's the reality. Eighty percent
of the problems we have are because of human
incursion into the natural habitat. I don't think
anybody challenges the threat to the species, whatever
Mr. Peter Miller: We have a very exciting example
of this in Calgary where the peregrine falcon was on
the verge of extinction in that area. We've had a
community-based program, and we now have a peregrine
falcon nesting in the Petro-Canada building and a
number of buildings around Calgary.
There's a way, I'm suggesting, that we can manage
this. If we as a society decide we have reached the
limits of growth, that we cannot go any further, that
is a fundamental public policy decision that involves
immigration; it involves where our economic base is
going to be in the future, whether we're going to
continue to harvest trees or look for oil and gas. A
government would have to stand up and say we're not
prepared to heat our homes with natural gas if we don't
want gas from new sources.
That's a very big decision, and I think to tackle that
decision.... That's a public policy decision that
needs to be made at the highest level, but once we've
made that decision, we have to manage the
consequences of it.
We are coming at this problem from the opposite
direction. We're committed to this growth, we want
resource development and exports and all the benefits
they bring to our communities and our society, yet we
are knocking away, chipping away, at individuals,
making their lives difficult, precarious, uncertain,
and very expensive and complex with regulatory
processes. That is not the way to deal with fundamental
public policy issues. We think this bill, except for
the stick that's in here—and that's the threat of
picking away—provides for a mechanism to manage this
situation. That's where we see the success of this
The Acting Chair (Mr. Gar Knutson): Thank you very much.
We'll now go to Mr. Reed, followed by Madam Carroll.
Mr. Julian Reed (Halton, Lib.): Thank you, Mr.
I happen to favour a model for compensation, and I'm
hoping this committee can deal with that so
something positive will come out of it. But I want to
point out a couple of things to the committee and
the witnesses—and maybe I'll be looked on as Peck's
bad boy for doing it.
Municipalities continually remove property rights from
landowners without compensation. It's called zoning.
The provinces continue to create land areas without
compensation to landowners, such as the Niagara
Escarpment in Ontario, or the ANSIs, as were pointed
out—the areas of natural and scientific interest.
So when we're talking about the federal government's
willingness to compensate, willingness to participate,
maybe we're the odd guys out here. When I want to
develop a lot on a property, I have to dedicate so many
feet for road widening. I have to make payments in
lieu of parkland. I have to do all sorts of things
that remove my property rights. So I would suggest we
put our deliberation about compensation into some sort
of balance here so that we can work out a model that is
appropriate to landowners.
I have two other questions. I'll just drop them right
Why are we talking only about land here, since most of
the endangered species are in water?
That has to do with urban development and the
degradation of the Great Lakes and so on. And the
other question, which I ask every witness who is here,
is are we part of nature? Are human beings part of
nature? So I'll leave that for you.
Mr. Bob Woolham: Yes, I'd like to help, if I may,
answer some of the questions about the relationship
between the federal government and the municipalities and how
some of these things get started.
I have a document here, which says:
Certain lands of extraordinary value as waterfowl
habitat can best be preserved when they are acquired in
fee title and retired from other uses. Only a limited
amount of habitat can be preserved this way because of
the high cost of fee acquisition and subsequent
Local governments and public land
management agencies should be encouraged to zone or
otherwise regulate land uses to prevent the destruction
or degradation of waterfowl habitats.
That's an international agreement signed between
Canada and the United States, the North American Waterfowl
Management Plan of 1986. In a sense, it was a
tremendous encouragement for municipalities and
provincial governments to do just that.
The process now in Ontario is that there is indeed a
certain kind of compensation in terms of property tax.
You now get a discount if you have farmland or
managed forest. It's 25% of the residential rate.
If it's conservation land, like endangered species,
it's zero. Therefore, the municipalities, in a
sense, lose that revenue and so everybody else in the
community gets to pay for it. So what we're having is
a reversal of this role in how these things are going
to be handled.
Lastly, with respect to water, you're quite right,
but the real water issues these days are with Fisheries
and Oceans. These are protocols that have been signed
with conservation authorities, and there's a great deal
of control more stringently applied, in terms of our
water resources in terms of habitat, than
there is on land. This is just another part of the
total package that goes into this process.
The Acting Chair (Mr. Gar Knutson): Very briefly,
Mr. Pierre Beauchamp: Mr. Chairman, I have an
observation on the question, and it is is that the fifth
principle of Mr. Pearse's report states
that property rights must be respected. I said in
my presentation that “being respected” means being
compensated. If there's a taking of the use, we
consider this to be expropriation, and there should be
just and fair payment for that particular taking.
That I think is a fundamental principle. We're not
comparing to anyone else. I think the basic principle
at stake is property rights.
The Acting Chair (Mr. Gar Knutson): Thank you very
Mr. John Hachey: I have a comment concerning the
municipalities. The fact that certain municipalities
across Canada may not compensate for various things
doesn't mean that all municipalities don't adhere to
the issue of respect for the use of land and the way we
zone. In our committee, which had members from across
Canada and the territories, it was very clear that
various provinces and various associations and
municipalities compensate in different manners and in
different ways. But rather than get into litigation,
it's far better to come to an agreement in some manner
or other and to have a response that you would either
give a fair market value, if you're actually taking
away the rights of that land from that person...and
if you are not going to give fair market value,
you'd look at land swaps or things of that nature, which do
exist throughout Canada.
The Acting Chair (Mr. Gar Knutson): Madam Carroll.
Ms. Aileen Carroll (Barrie—Simcoe—Bradford,
Lib.): I would like to continue that line of
questioning, and I really would like to direct it to
you, Mr. Hachey. I do think Mr. Reed is onto something
that is quite pivotal to our discussions this morning.
This is that you do, municipal governments—and I've
been a member of one—frequently pass bylaws that
restrict land use and affect the value of the property
accordingly. What we're talking about here is
restriction. We're not talking about expropriation.
So I think we should stay focused on that.
In recommending to us that we should use the arbiter
of fair market value where we have a duty then to fully
compensate, I think if you took that on as FCM
and recommended it to your member
municipalities it would have quite a major financial
impact across Canada. So I'm asking you, more
specifically perhaps than Mr. Reed, are
there any examples of municipal acts in Canada that
call for compensation in similar circumstances?
Mr. John Hachey: The end part of your question
Ms. Aileen Carroll: That call for compensation,
as you were recommending to us in similar circumstances
when you at the municipal level so restrict the use
of the landowner.
Mr. John Hachey: Clearly there have been legal
cases in zoning where it's been seen as
disguised expropriation and where the
municipality had to pay fair market value because it
was clearly a form of disguised expropriation.
In cases where you are taking away the rights of the
use of land, then it would be fair market value and I
think there would be agreement on this among municipalities
across Canada. It's not the same situation in terms
of, as you stated at the very beginning of your
statement, zoning where we're not, in many
Ms. Aileen Carroll: Mr. Reed used the word
“zoning”; I'm talking about all of what a municipal
government does to restrict the rights of owners with
regard to the use of their land. Zoning is what Mr.
Reed mentioned, but there's a variety, a vast variety,
of measures that municipalities must, for the common
good, undertake to restrict the value of land. My
contention is, and I'm asking you to correct me if
I'm wrong, that municipalities across Canada do not
compensate at full market value when they do so.
Mr. John Hachey: In the committee discussion,
certain provinces did, and it was considered in terms of
the discussion of the committee that drafted this
report that the best method would be fair market value,
although not every province—
Ms. Aileen Carroll: For us at the federal
Mr. John Hachey: No, various provinces do not
compensate, and various municipalities in various
provinces do not compensate in the same manner. In the
province of Quebec, when there is a situation of
expropriation, it is based upon, as an example, fair
Ms. Aileen Carroll: Hold on here now. Can I
deduce from what you're saying that you are
recommending that municipalities do the same, and that
you would not be recommending that we only have this
encumbrance upon us at the federal level?
Mr. John Hachey: We're recommending in terms of
our municipalities that if you're taking away the
rights of the use of the land from developers,
you'd compensate. If it was municipal expropriation
Ms. Aileen Carroll: It's not expropriation; we're not
talking about expropriation here. We're talking about regulation
of use, restriction of use—no expropriation.
Mr. John Hachey: In terms of restriction of use,
if it's determined that the person is not able to use
their land, then we're looking at it as being simply
disguised expropriation. If it is in fact a situation
where they are still able to utilize their land, then we
are looking at a situation where we're looking at
incentives for the people to be able to make sure
they can develop their land in the proper manner.
Ms. Aileen Carroll: What I'm trying to say is that
once we accept the argument that any regulatory land-use
restrictions for endangered species protection
require full compensation, then you will inevitably end
up having to do the same for other kinds of regulatory
land-use restrictions. You're comfortable with
Mr. John Hachey: Yes.
Ms. Aileen Carroll: Quite frankly, I'm pleased to get you
on the record on that.
The Acting Chair (Mr. Gar Knutson): Your time's
Ms. Aileen Carroll: Is that it? Five minutes?
I'll go for the second round.
The Acting Chair (Mr. Gar Knutson): There won't
be time for a second round, so proceed if you have a
Ms. Aileen Carroll: My brief comment, and I'll try
to put a question mark on the end of it, is that I
think the new compensation power that has been added to
this bill is one of its strengths. Contrary
to what, unfortunately, several of you have used, Bill C-33,
this is Bill C-5. There have been changes, and I really would
have appreciated the recognition of those changes and
the use of the new term, Bill C-5, by some of the people who
just reach for old briefs.
I do think it's something that's been an added
strength to this bill. It has been a response by
government to much of what has been brought forward.
In listening to all of you come and
say we're going to count the cost and how we contribute
to the common good, and make sure we use a ledger
approach here and make sure I'm not giving any
more than the next guy.... I find that really
the Pearse report is going to finally bring about a
balance, and you seem to be pre-empting what that
balance would be. So remember the role of
government—government is not business.
The Acting Chair (Mr. Gar Knutson): Mr. Savoy.
Mr. Andy Savoy (Tobique—Mactaquac, Lib.): Thank
you very much. My questions are very much along a
similar line, but I'll expand on it a little.
Does each of your organizations support
conservationism and protecting species at risk? Would
you say that? Can you support that with financial
Mr. Stan Klassen: Yes.
Mr. Andy Savoy: You can support that with a
financial commitment? Okay.
What I'm saying is that species at risk, endangered
species, and conservationism comprise an issue where
we aren't the only people with responsibilities, the
federal government. There has to be some
responsibility taken on the part of various land users,
the municipalities, the property owners. But what
you're proposing is that, as opposed to an agreed
compensation or a negotiated compensation, we
compensate you 100% for the use of the property at fair
market value. It sounds to me as if you're giving us
verbal support for conservationism and species at risk,
but when the rubber hits the road, when we're actually
looking at a compensated value for the property, you're
saying, whoa, we'll give you verbal support, but we
aren't going to actually commit any financial resources
towards it or do our part financially.
Is that a fair assessment? Is that what I'm hearing?
Mr. Peter Miller: That's not fair at all. I think
The Acting Chair (Mr. Gar Knutson): Excuse me, Mr.
Klassen wanted to intervene.
Mr. Stan Klassen: Thank you, Mr. Chairman. I
would simply comment to that effect. Fairness, by
description, is balanced and equal. I refer to Dr.
Pearse's recommendation that the threshold of 10%—and
I indicated that I thought that was where compensation
would begin—is high.
However, what we take serious objection to is that
beyond this point, where there's a direct demonstrated
cost, the landowner would still only be compensated up
to 50% of the remaining balance. In other words, the
individual is expected to carry some 60% of the cost,
while 30 million other Canadians, in the interest of
the public, would carry the rest. That's not justice.
That's not fair. That's the point I was raising.
The Acting Chair (Mr. Gar Knutson): Okay. Thank
Mr. Peter Miller: In direct response to your
question, I think there are an unlimited number of
creative solutions for dealing with a situation on a
particular piece of land, and it is our expectation
that we'll exhaust every one of those. But when you
get to the point where a farmer, for example, has
one-quarter of his land taken out of production, he has
to replace that income from somewhere.
But where possible, there's no question.... Certainly
in the resource industries, forestry, oil and gas,
mining.... I can keep you here all morning telling you
stories about how we have worked with conservation
groups, communities, and spent million of dollars—and
much of this information has been provided to the
government—in conservation initiatives. We are very
proud of that. That's our history. We know it works.
We would see compensation as being very rare, because
we think we can come up with a creative solution that
doesn't affect operations, meets the objectives of the
act, and doesn't cost anyone any money.
The Acting Chair (Mr. Gar Knutson): Fair enough.
Mr. Bob Mills: We talk about a lot of things like
phosphorus and water and conservation. In fact, there
are many different kinds of water, of phosphorus, and
of conservation. A lot of it depends on the goals and
how those are managed and balanced. I had four
different agencies about a livestock crossing. The
people from the coast guard were concerned about canoes
and suggested I build a bridge. I wanted to put in
some gravel and put a plank over the gravel. The
Ministry of Natural Resources were concerned about the
fish habitat—they didn't want that disturbed. The
people from Environment, concerned about water quality,
insisted that the cattle cross the stream without
getting their feet wet. So there was no solution
available through that process.
I think when we come to conservation there has to
be more than just one size fits all.
I know, for example, in Ottawa-Carleton that they did
attempt through municipal government to take over
conservation, and the OMB eventually came and said they
had to buy it. That was a court ruling that came out
of the municipality.
Mr. Andy Savoy: Thank you.
I have one more that—
The Acting Chair (Mr. Gar Knutson): Well, it's
your time, Mr. Savoy. Do you want to—
Mr. Andy Savoy: I understand what you're
going to say, I believe. It's very similar.
But in looking at shared responsibility—the extent
that you share—do you think we should look at an
ability-to-pay clause, depending on whether it's
Noranda Forest Products or a farmer, where you can look
at various compensation levels. Is that something
that's crossed anybody's mind? I certainly appreciate
that we're trying to find a solution here. Has that been
considered, that it could be based on the size of the
entity? Or do you think there's one solution...? I'm
talking about the negotiated settlement now here.
The Acting Chair (Mr. Gar Knutson): Mr. Miller.
Mr. Peter Miller: I think you always have to
approach these issues from a position of principle, and
there's no question that a large landowner or
stakeholder will have the ability and flexibility to do
more—perhaps on a voluntary basis. But Bill Gates pays
the same price for a quart of milk as I do, and that's
just the way our society works. That's a fair
principle. I don't think ability to pay should ever
come into a government consideration of a solution to
endangered species. Absolutely not.
Mr. Andy Savoy: Pierre, we didn't hear from you.
Mr. Pierre Beauchamp: Well, I'm simply going to
reinforce our position that while we might accept the
10% threshold, we do have serious problems, as I said,
with compensation for only 50%. That doesn't seem
Our position is that restricted land use is
expropriation. It's as simple as that. We believe
that what should be paid is what the land is worth.
That's the position we've adopted.
Mr. Andy Savoy: Is there any more time?
The Acting Chair (Mr. Gar Knutson): No more time.
Ms. Hélène Scherrer (Louis-Hébert, Lib.): Thank you, Mr.
Chairman. I have two questions.
First of all, I'd like to follow up on the questions that have
been raised concerning the expression "fair market value". Can we
equate the fair market value with the municipal property
assessment? Where does the municipal assessment enter into the
picture, since we know full well that if land is designated as a
natural habitat, it runs the risk of losing its zoning or of having
its zoning amended? The fair market value could decrease if the
land designation changes.
Therefore, when we talk of fair market value, what exactly do
we mean and what basic criteria are used to assess the value of
either private or public lands?
Mr. John Hachey: I think I should respond to that,
because I used the term “fair market value”, and
because it has been used in the text. Municipal
governments use the issue that it's based upon the
taxation of the land, not on the full market value. The
full market value may be even more, but the fair market
value is what they're paying tax on, and the people have
agreed that that's what they see—
Ms. Hélène Scherrer: Therefore, the municipal assessment...
Mr. John Hachey: That's right.
Ms. Hélène Scherrer: ... at the time the species is
Mr. John Hachey: That is correct.
Ms. Hélène Scherrer: Okay. It might change a
Mr. John Hachey: Yes.
Ms. Hélène Scherrer: My second question is for Mr. Miller. As
I understand it, you are prepared to concede that the minister does
have some discretionary authority when it comes to selecting
species for inclusion on the list. You don't want the list to be
drawn up by scientists, but approved by the minister. Am I right?
Mr. Peter Miller: Yes.
Ms. Hélène Scherrer: Why then not recognize the minister's
discretionary authority under section 124 to restrict the release
of information if such release could threaten a wildlife species?
Mr. Peter Miller: Absolutely. The government
needs the ability to gather information on species.
I may not have made my point clear on clause 124. It
gives the minister the right to not tell a property
owner that there is a species on his land.
I think that simply offends principles of justice when
the consequences of that species on your land are
criminal and you could go to jail for accidentally
injuring a species that you did not even know was on
your land. He knew it was on your land, and he may
even be standing there watching, waiting for you to do
some harm to it. This is the fear that property owners
Ms. Hélène Scherrer: This is akin to saying that the
government is waiting for someone to make a mistake before putting
the species on the list, whereas in truth, the aim of the
legislation is to protect a species by restricting the release of
information. The point is not to wait until such time as the owner
of the land is caught makes a mistake.
I really don't think that the purpose of this discretionary
authority is to catch people doing something wrong and hold their
actions against them. I think we need to remember why this
provision on discretionary authority was included in the
legislation in the first place.
Mr. Peter Miller: Yes, I agree with that. I agree
that the game should not be “gotcha”—caught you
offside accidentally. One of the big concerns about
the bill is that when it is passed, the prohibitions
will come into effect immediately.
What we, as stakeholders in this, are looking for is
the opportunity to work with the government—to plan to
get activities and action plans approved, to get
exemptions under agreements, after we do a proper
environmental assessment—all those things. They take
time. The troubling feature of the bill is the
transition provision, which provides that the
provisions that make me a criminal come into effect
immediately. If I have a federal government approval, I
can get a one-year grace period, but that grace period
does not apply anywhere else.
That is very frightening law, because it is
contemplated under the bill that what is going to make
the cooperation work, get my involvement, and make me a
happy Canadian citizen is that when I modify my
activities to invite species onto my land, I will not
be exposed to the possibility of criminal charges
whenever a species dies naturally; nor will I get
dragged into court to explain that I didn't do it, but
rather exercised due diligence to try to prevent that
species from dying a natural death—or however it died.
So clearly we have to be concerned. I don't think for
a minute that the government is intending to be
malicious and trying to play “caught you offside”. What
we are talking about today are the flaws in the
legislation. As a lawyer, I tell you that this creates a
gap, which gives a very frightening exposure. It's
very easy to close that gap, and we are asking this
committee to do so.
The Acting Chair (Mr. Gar Knutson): Madam Redman,
Mr. Casson, and if
there's time, Mr. Forseth.
Mrs. Karen Redman (Kitchener Centre, Lib.): Thank
you, Mr. Chair.
I have three questions, Mr. Miller. I just want to
pick up on the point that Madame Scherrer actually
When you look at clause 124, about which you have
expressed concern as limiting the rights of landowners,
it actually is a release of information required to be
included in the public registry if that relates to the
actual welfare of a species—the best interests of an
endangered species. We've heard from other groups, and
particularly landowners, who are more concerned that
the release of information may in fact cause people
to trespass on their land and therefore infringe on
their private land rights.
I would offer the example of the American ginseng,
which is an endangered species. The main threat to this
species is actually poaching. So we have to be
sensitive. That's why clause 124 is actually cited,
since putting in the public registry the fact that you
have an endangered species that people may want to
poach will not be in the best interest of that
endangered species, and may in fact invite people to
come and trespass on private land.
That's the intent of clause 124. I wonder
whether you would like to comment on that.
Mr. Peter Miller: Well, I like to hear that
explanation. If that implies that in fact the
property owner himself or a resource developer who's
cutting trees in a very wide area will be told of that
species on his own land, clearly that's cooperation and
working with the government.
I have difficulty in managing one problem by using
something that doesn't fit right in a different piece
of legislation. Clearly, the trouble is that
consultation—the duty to consult statutorily—only
arises when you're drafting recovery strategies and
action plans. If you have not arrived at that stage
yet or if you...and especially with the declaration of
the prohibitions that come into effect immediately, I
Now, to the extent that the delay in publishing,
or not publishing, helps to manage an access issue,
and people's tromping, I suppose that is helpful,
but we have to make sure that in using this provision
of the legislation to prevent that harm from happening
it does not expose anybody else who lawfully belongs there,
who's conducting a resource development or agricultural
activity, and who can accidentally and innocently
Again, the solution to this gets back to mens
rea offences. In order to support criminal law
power, they should never target accidental events.
They should target intentional, wilful, harmful,
and malicious events, and acts of destruction.
So that's the real solution. But I like your
explanation, and if it works, all the better.
Mrs. Karen Redman: Clearly, that's the intent of
Thank you, Mr. Chair.
The Acting Chair (Mr. Gar Knutson): Mr. Casson.
Mr. Rick Casson (Lethbridge, Canadian Alliance):
Thank you, Mr. Chairman.
I have two short questions, one for Mr. Klassen and
one for Mr. Miller.
Mr. Klassen, in your comments I believe you referred
to 80,000 acres or so of wetland and protected
areas your association has developed to enhance habitat
for species, endangered or not. Part of the reasoning
behind this bill is to create cooperation between
people involved in protecting species and to maximize
what they're doing.
I'd like to know, where are the funds coming from, or
where did they come from, to create these areas, and
where do they come to operate them? Do you see
anything in this bill that would help you to do that,
or help you to expand those areas?
Mr. Stan Klassen: Mr. Casson, thank you for asking
that question. In excess of 80,000 acres have been
developed over the course of about 60 years. This
particular case has been a partnership between the
irrigation districts and Ducks Unlimited. They've all
been done on a cost-shared basis, with Ducks Unlimited
bearing some of the cost. The irrigation districts
and, through their assessment, the actual farmers have
contributed to the remainder of the cost.
They continue to do so on a basis of managing the
irrigation water, in addition to the other enterprises
they are responsible for in this semi-arid desert, and
creating these wetlands that Ducks Unlimited has
indicated are today some of the best staging areas for
ducks in North America. That has been done and
continues to be done on a cooperative and cost-shared
Mr. Rick Casson: Thank you.
Mr. Miller, correct me if I'm wrong, but I think you
indicated in your comments that if a party put a
mitigation process in place to enhance habitat, to take
care of a species on their property, and it failed, or
didn't do what it was intended to do, those people
would be liable. Is that what you said, or did I
misunderstand what you meant? If it is what you said,
then what part of the bill addresses that?
Mr. Peter Miller: The exposure to a landowner is
that if an endangered species is found dead on his land
he has to explain that he didn't kill it, that he
exercised due diligence in his operations to ensure
that it was not killed.
As I said, I think the positive carrots will create
the possibility that landowners will modify their
activities to create habitat. The best you can get
with the stick is to hold your ground, to keep from
losing, and a negative approach is not going to be
successful. I think we have to have the positive
The part of the bill that creates this problem is
subclause 83(4), from which I quoted already. It
provides for the exemptions that I call “immunities”.
A landowner needs to know that when he participates in
a program and modifies his activities, he will be
exempt from attack under this legislation for
activities where loss occurs. That means he can open
the gate, put his cattle in the field, and if his
cattle destroy a nest in this field, know that under
the action plan we have considered all the other fields
in the area and there's plenty of room there, so he's
going to be allowed to put his cattle here.
Our concern is
that the potential for abuse under this legislation
will see other people who are not so concerned about
endangered species using that opportunity to interfere
with other lawful activities, whether they be mining or
forestry in a particular area, or agriculture. The
protection that is not available in the act right now
has to occur in subclause 83(4), and it has to very
clearly apply to all activities that are contemplated.
We need to understand that when the action plan is
developed, we should have the scientists sitting down,
the landowners, the conservation groups, every
stakeholder with an interest in this piece of land and
this species. We are agreeing that, better than a
court of law, better than any regulatory body, this is
the forum closest to the ground, with the people who
are best positioned to make an assessment on this
particular species at this particular location.
A stakeholder needs to know, when that assessment has
taken place, that they are then immune, because there
will be species living in proximity to that activity.
They will be encouraging them to come. There will be
dead birds falling to the ground. There will be plants
that are stomped on or flooded. The intent of the
action plan is to contemplate all that and to make a
decision about what is an acceptable level of activity
in this particular circumstance. Once that is decided,
there must be immunity for the stakeholder.
The Acting Chair (Mr. Gar Knutson): Mr. Forseth, did
you want to...?
Mr. Paul Forseth (New
Westminster—Coquitlam—Burnaby, Canadian Alliance):
I'll go back to an issue we talked about. There has
been this concern as to whether the establishment of an
effective compensation regime requires an amendment to
the bill or the particulars can be spelled out in the
regulations. This is a concern of a lot of people in
the prairie provinces. Should everything really be in
the bill to provide predictability? Or can we just
rely on the government where they say “trust us”, and
let it be worked out in the regulations? Any of you
could address that issue.
Mr. Pierre Beauchamp: We see this as important
enough that we have recommended the reference to
regulations currently in there be removed. It's in
this context that we said—that's the amendment we
recommend—“The minister may provide compensation to
any person for any loss suffered as a result of impact
of the application of” the relevant sections. So we
have removed the regulations, because we do believe
that the property rights issues involved in this
particular case are important enough that they should
be in the legislation and not in regulations.
The Acting Chair (Mr. Gar Knutson): Mr. Miller.
Mr. Peter Miller: Many groups have recommended
that the language in that section in the act should be
changed from “may” to “shall”. It creates a
mandatory obligation on the minister to pay
compensation in particular circumstances. The
regulations can spell out those circumstances, but we
believe it's appropriate that the obligation be
Mr. Paul Forseth: If we ever get that far, should
there be a dispute settlement mechanism created? If
so, have you contemplated that part of it?
Mr. Peter Miller: Dispute settlement over the
value of compensation?
Mr. Paul Forseth: Yes.
Mr. Peter Miller: Absolutely. In many cases
you'll have a situation where the stakeholder, the
landowner, is quite prepared to restrict his
activities, to throw in land. The only issue that
cannot be resolved is the value of that. It would be
very appropriate in those circumstances to have an
independent arbitrator determine only one question:
what is the value of the loss? As I say, the
jurisprudence already exists in that area.
The Acting Chair (Mr. Gar Knutson): The chair of the
human resources committee has just entered the room, a
reminder that 11 o'clock is coming.
Madam Redman, if you want to present a motion, the
24-hour rule will be invoked, and we'll deal with this
Do you want to make some introductory comments?
Mrs. Karen Redman: I can. Thank you very much.
You should all have received a draft, a work proposal,
which I would ask the committee here to consider. I'd
also move that the standing committee complete all
witness panels by the week ending Friday, May 11, and
invite the Minister of Environment to appear on or near
the completion of the witness panels, and that we
initiate clause-by-clause examination of the draft bill
during the week beginning Monday, May 14.
If you like, Mr. Chair, I can speak to it now, or I
can speak to it on Wednesday before the actual—
The Acting Chair (Mr. Gar Knutson): You could say a
few words. I would ask the witnesses to hold on for a
Mrs. Karen Redman: Okay.
The Acting Chair (Mr. Gar Knutson): This won't
Mrs. Karen Redman: Clearly this committee has
indicated that this very important piece of legislation
is a priority for them, as it is for Canadians. Many
of the briefs we're hearing are briefs that were
presented previously. That's not to say the witnesses
don't care. It's to say that a lot of the very
important issues have already been fleshed out, and
they're coming to reiterate positions.
I've talked to the clerk in the past. I know that
written submissions are available for committee members
who want to peruse them. In regard to the work plan
I've suggested, while it's fairly ambitious, as I said,
this committee has already indicated it's willing to
meet extra times in order to hear the witness list that
we had originally tentatively identified. My
understanding, as well, is that—
The Acting Chair (Mr. Gar Knutson): I think that's
Mrs. Karen Redman: All right.
The Acting Chair (Mr. Gar Knutson): If you
don't mind—I apologize.
I want to thank the witnesses for coming to Ottawa and
giving us their insights into the bill. It's all part
of a very important process. I thank the members and
I thank the human resources committee for their patience.
The meeting is adjourned.