STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, April 3, 2001

• 0911

[English]

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 agenda.

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. Beauchamp.

[Translation]

Mr. Pierre Beauchamp (Chief Executive Officer, Canadian Real Estate Association): Good morning, Mr. Chairman. My name is Pierre Beauchamp.

[English]

I am chief executive officer of the Canadian Real Estate Association.

This is Mr. David Humphreys, our federal affairs adviser for the Canadian Real Estate Association.

[Translation]

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.

[English]

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 Municipalities.

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 Act.

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. Beauchamp.

Mr. Pierre Beauchamp: Thank you, Mr. Chairman.

• 0915

The Canadian Real Estate Association represents some 64,000 members who practise in all parts of our country.

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 compensation.

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 reasonable definition.

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.

• 0920

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 not there.

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 possible.

The eighth principle of his report states:

8. Administrative arrangements should be simple, avoiding costly procedures and burdensome compliance requirements.

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.

• 0925

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. Hachey.

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 agreement.

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 species.

FCM also supports the respect for the shared mandate of federal-provincial governments in conserving biological diversity.

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.

• 0930

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 property swaps.

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 conservation.

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 people.

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 welcome.

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.

• 0935

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 Projects Association.

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 analysis.

We support the SARA legislation in principle, but we have concerns with regard to the proposed sanctions it includes.

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 them.

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 philanthropically.

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?

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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 regulated activity.

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.

• 0945

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 settlement.

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 generally here.

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 with them.

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 decision.

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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 not criminal.

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 to individuals:

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 questions.

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The Acting Chair (Mr. Gar Knutson): Thank you for your presentation.

Mr. Woolham.

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 they do.

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 the day.

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.

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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 species.

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 liabilities.

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.

Thank you.

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 of communication.

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.

• 1005

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 to negotiations.

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 expropriation.

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 enforcement.

The Acting Chair (Mr. Gar Knutson): You have five minutes.

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 much.

[Translation]

Mr. Bigras.

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): I'll try to make it quick, since we only have five minutes.

• 1010

I have a question for Mr. Miller. First of all, may I congratulate you on your brief which is quite comprehensive and explicit.

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 Constitution [...]

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 constitutional challenge.

[English]

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 private participants.

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 constitutional challenge.

[Translation]

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?

[English]

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 stakeholders.

• 1015

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.

[Translation]

Mr. Bernard Bigras: Therefore, members of your federation are in favour of the use of the double safety net. Is that what you're saying?

Mr. John Hachey: Yes.

The Acting Chair (Mr. Gar Knutson): Is that everything?

Mr. Bernard Bigras: Yes.

[English]

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 this country.

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 to compensation.

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 aware?

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 risk.

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 national park.

• 1020

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 ground.

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 it is.

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 bill.

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. Chairman.

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 now.

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.

• 1025

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 management costs.

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. Beauchamp.

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 much.

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.

• 1030

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 was?

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 cases—

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 level.

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 market value.

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 we would—

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 that?

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 up.

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 brief question.

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 disappointing. I think 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.

• 1035

Thank you.

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 commitment?

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 there's a—

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 you.

Peter.

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. Mills.

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.

• 1040

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 fair.

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.

Madame Scherrer.

[Translation]

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?

[English]

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—

[Translation]

Ms. Hélène Scherrer: Therefore, the municipal assessment...

Mr. John Hachey: That's right.

Ms. Hélène Scherrer: ... at the time the species is identified.

Mr. John Hachey: That is correct.

[English]

Ms. Hélène Scherrer: Okay. It might change a little later.

[Translation]

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?

[English]

Mr. Peter Miller: Yes.

[Translation]

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?

[English]

Mr. Peter Miller: Absolutely. The government needs the ability to gather information on species.

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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 have.

[Translation]

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.

[English]

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 brought up.

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 am exposed.

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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 get caught.

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 this section.

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 basis.

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 approach.

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.

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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): Yes.

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 mandatory.

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 tomorrow.

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 second.

Mrs. Karen Redman: Okay.

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The Acting Chair (Mr. Gar Knutson): This won't take long.

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 it.

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.