Environment Committee on April 22nd, 2010

[The Chair, Conservative, James Bezan]

I call this meeting to order.

We're running a little late. We had an exciting afternoon in the House, with the arrival of all of the Olympic athletes and the Paralympic athletes. It was fantastic seeing all of those great representatives of our nation in Vancouver.

We have an agenda before everyone. This is meeting 11. We'll go for one hour with the Congress of Aboriginal Peoples. We have Mr. Alastair MacPhee, and he's joined by Joshua McNeely, who's no stranger to this committee. He was here just a week ago.

Then by video conference we have, from the Walpole Island First Nation, Councillor Kennon Johnson. Welcome.

You have somebody with you there, assisting you.

[Kennon Johnson, Councillor, Walpole Island First Nation]

Good afternoon. Clinton Jacobs is with me.

[The Chair, Conservative, James Bezan]

Thank you very much.

We're going to break at 4:30. Then we'll have the National Aboriginal Council on Species at Risk, NACOSAR. Dean Holman, the coordinator, will present to committee for one hour.

At the end of that meeting we'll save some time to have a quick in camera discussion about the Species at Risk Act report, how we move forward, and possible future panels. That shouldn't take too long.

We'll proceed to opening comments, beginning with Mr. MacPhee for ten minutes or less, please.

[Alastair MacPhee, Policy Advisor, Congress of Aboriginal Peoples]

Good afternoon, Mr. Chair and members of the House Standing Committee on Environment and Sustainable Development. Thank you for the invitation to appear before this committee as it undertakes the five-year review of the Species at Risk Act for the purposes of section 129.

I am pleased to have with me today my colleague, Joshua McNeely, who has been on the front lines of SARA implementation.

It's a pleasure to be here today on the traditional and unceded territory of the Algonquin peoples. Here at the intersection of the Ottawa, Gatineau, and Rideau Rivers, aboriginal peoples met, traded, and negotiated for generations.

Aboriginal people are the traditional keepers of Mother Earth, and we have a solemn duty to prevent species from becoming at risk and to protect those at risk. On this 40th anniversary of Earth Day, it's appropriate that we are talking about this environmental issue.

The Congress of Aboriginal Peoples is one of the five national aboriginal organizations that represent aboriginal peoples in Canada. Our constituency is made up of status and non-status Indians living off reserve and Métis. CAP has been in existence for 39 years and has been involved in all of the major constitutional events during this time. We were the first national aboriginal organization to establish a bilateral relationship with the federal government.

The UN Intergovernmental Panel on Climate Change has stated that the surface temperatures of the earth are warming up at unprecedented rates, and that climate change will directly and negatively impact the spatial and temporal conditions in which species currently live. DFO scientists have clearly stated that climate change will have significant and widespread impacts on species at risk. Climate change will accelerate, and we need to have the flexibility to adapt to this reality.

With a rapidly changing climate, the David Suzuki Foundation estimates that 45% of Canada's habitat could be lost by the end of the century, along with 20% of species and vulnerable ecosystems. This is a legacy that none of us wants to pass on.

Beginning in 1998, CAP participated in an aboriginal working group focused on species at risk. We sometimes had different political views, but by and large this did not prevent us from working together. Our mutual concern was Mother Earth and the protection and recovery of species at risk. This aboriginal working group was responsible for the high profile of aboriginal interests in SARA.

The Species at Risk Act went through a lengthy process before coming into force. Bill C-65 died on the order paper in 1997. Bill C-33 died on the order paper in 2000. And Bill C-5 finally passed in 2002 and was proclaimed into law in June 2003. When the House of Commons standing committee went through the process of dealing with Bill C-5, the resulting legislation included a significant role for aboriginal peoples. This was no accident, because the aboriginal working group had worked on the various bills leading up to the Species at Risk Act.

In 2003, the House of Commons Standing Committee on Environment and Sustainable Development unanimously passed section 8.1 of the act, which launched NACOSAR. This was a strong endorsement of the role that aboriginal peoples should play in species at risk. It's the only place in Canadian legislation where an aboriginal council advises a minister of the crown. NACOSAR also provides advice and recommendations to the Canadian Endangered Species Conservation Council, comprised of the FPT ministers responsible for wildlife species.

The aboriginal traditional knowledge subcommittee of COSEWIC is a major achievement, as it's where aboriginal traditional knowledge is considered in the assessment of species of risk. A recognition of the importance of ATK in SARA is vital to success.

CAP believes that the voice of aboriginal peoples is strongest when it's a united voice. We do not view the species at risk agenda as a place to pursue narrow political interests or to engage in political posturing. The elders have repeatedly told us that this is a time for all aboriginal peoples to speak and act on this critical environmental issue. The Species at Risk Act clearly sets out that aboriginal people must have a full opportunity to participate in its implementation from beginning to end.

Loss of diversity is considered one of the world's most serious environmental problems. We know that a useful yardstick for measuring the health of a country's biodiversity is the number of species at risk. In Canada, that number is growing. The more work that COSEWIC undertakes, the more species are added to the list. COSEWIC has classified 598 species in various risk categories. There are only 180 recovery strategies in place. One action plan has been completed, two are proposed, and five are in draft.

The architecture of SARA, as some of you already know, is a species approach, and at some point a fundamental shift to the ecosystem approach needs to take place. You've heard this before from the Auditor General, from the Stratos report, and from numerous other witnesses at this table. The numbers tell the story. If we continue on the species approach, we'll never catch up.

From your work on this committee, the members understand that the Species at Risk Act is a complex piece of legislation. It deals with three federal departments, interjurisdictional issues, a wide variety of stakeholders, and aboriginal peoples. It's actually hyper-complex.

Back in 2003, when SARA came into force, it brought many new responsibilities to Environment Canada, the Department of Fisheries and Oceans, and Parks Canada. To be fair to these departments, the implications for delivery were not well known, and it was only through experience that they came to understand the real scope of this legislation. Similarly for aboriginal peoples, we were unsure how NACOSAR, the ATK committee, and the national aboriginal organizations would interact to ensure that the essential role of aboriginal peoples occurred in the conservation of wildlife.

For DFO to deliver on SARA requirements for aquatic species, they relied on volunteers, non-governmental organizations, universities, and aboriginal organizations. This is one of the fundamental aspects of this agenda. The cooperative voluntary approach is the linchpin of the SARA process. CAP is pleased with the proactive approach of DFO. We've developed a positive relationship. We've worked on many species at risk, such as the porbeagle shark, American eels, banded killifish, the wolffish, the piping plover, and Atlantic salmon.

The Species at Risk Act is well written and includes many sections that reference aboriginal peoples. In addition to the legislation, there are other processes where aboriginal peoples are engaged. For example, Parks Canada has established an aboriginal consultative committee that advises the CEO of Parks Canada. CAP would like to participate on this committee and be engaged with PCA.

The participation of the national aboriginal organizations in the policy and planning subcommittee to NACOSAR is vital for the flow of the information to the council members and to assist in reaching consensus. CAP is opposed to the NACOSAR coordinator being housed outside of Environment Canada and the secretariat housed within Environment Canada. The role of the council is to advise the minister on the administration of the act. Currently the coordinator is housed outside, in the offices of the Assembly of First Nations, and is perceived to be influenced and biased in that location. In addition, if the coordinator for NACOSAR is working out of an office at the AFN, how can he be engaged with the administration processes of SARA?

In the development of recovery strategies, the aboriginal voice is lost. There is a need to strengthen the role of aboriginal traditional knowledge in the recovery strategies, action plans, and management. We are not expecting significant changes to this legislation; however, we would advise the following modifications to strengthen the ATK role in recovery strategies.

Currently, under paragraph 39(1)(d), the recovery strategy must be prepared in cooperation with:

every aboriginal organization that the competent minister considers will be directly affected by the recovery strategy

Because there's no ATK advisory body in the recovery and action plan stages, government departments and academics are leading the ATK gathering process without understanding the sensitivities involved. In some cases, we've had situations where ATK holders have been approached by multiple parties on various days seeking the same information.

In order to strengthen the role of ATK in recovery, CAP recommends that section 40 of SARA be modified to read:

In preparing the recovery strategy, the competent minister must determine whether the recovery of the listed wildlife species is technically and biologically feasible. The determination must be based on the best available information, including information provided by COSEWIC and the ATK subcommittee.

CAP would recommend that paragraph 41(1)(a) be modified similarly, so it would read:

(a) a description of the species and its needs that is consistent with the information provided by COSEWIC and the ATK subcommittee;

Then again, that 41(1)(b) be modified to read--

[The Chair, Conservative, James Bezan]

Mr. MacPhee I don't believe you have to read through all of your--

[Alastair MacPhee]

You have each one of those in front of you.

[The Chair, Conservative, James Bezan]

And you need to wrap up. You're running out of time.

[Alastair MacPhee]

Okay.

The non-derogation clause in section 3 of SARA is something we don't support. That's also in your recommendation. We don't accept it because it's not in the language of the Constitution, and it has to be rewritten to be consistent with paragraphs 25(a) and 25(b).

The compensation program is one of the remaining areas for which there's been no consultation on compensation, and it's been a long-outstanding issue. There's no policy framework on that.

Regulations and enforcement are things on which we've received undertakings in the past from CWS. We've been involved in drafting regulations and enforcement, but we've never been involved in that part at all.

To wrap up, we recognize that flexible approaches are needed to recognize cultural differences and sensitivities across Canada. We know from experience that capacity building is essential to build effective programs and policies. The key is to have multi-year funding that would enhance the species at risk and ecosystem recovery planning. A sharing of best and innovative practices under SARA would strengthen the involvement of aboriginal peoples and would be more effective in producing the results.

Thank you. Meegwetch.

[The Chair, Conservative, James Bezan]

Thank you, Mr. MacPhee.

Now we'll go by video conference to Councillor Johnson. Can you please give us your comments on behalf of the Walpole Island First Nation?

[Kennon Johnson]

Good afternoon, everybody. I certainly appreciate and thank you for this opportunity to speak on this review. I won't go into too much detail, as we have a number of comments to make.

The Walpole Island First Nation supports the intent behind the federal Species at Risk Act, to protect and conserve wildlife species. However, Walpole Island First Nation does not consider the single species focused approach taken by SARA will save species at risk. Walpole Island First Nation takes a more holistic approach that focuses on biodiversity and maintaining human ties to the land. Thus far, SARA has fallen terribly short in meeting the majority of its objectives.

Issues with SARA.

Cost: the recovery planning process has been carried out in an inefficient and ineffective manner. The only success stories to date appear to be those in which species have been found to have not been at risk in the first place. Walpole Island First Nation agrees with the intent of the convention on biodiversity. However, saying that a single species approach, as SARA does, fulfills the objectives of the convention is quite a stretch.

SARA has been in place since 2003, yet seven years later SARA-responsible authorities have neglected to develop the policies, procedures, and legal instruments necessary for implementing and upholding the act, especially where critical habitat designation and protection are concerned.

SARA-responsible authorities continually use a type of risk management approach that has them doing as little as they have to in order to uphold the honour of the crown when consulting with us. First nations should not have to take the crown to court to make it meet its duty to consult us properly. Tokenism on the part of SARA-responsible authorities when consulting with first nations must end. In what is supposed to be a time of reconciliation between Canada and aboriginal peoples, the inequitable burdens that SARA has placed on aboriginal communities have undermined that spirit at almost every turn.

The failure of the government to work in good faith with aboriginal peoples on the conservation of biodiversity, coupled with the failure to uphold the duty to consult stemming from section 35 of the Constitution Act, will ultimately lead to a major breakdown of relationships, Caledonia-type standoffs, and additional losses against the Canadian government filed by and on behalf of aboriginal nations.

NACOSAR is underresourced, ineffective, and inaccessible to aboriginal peoples. The little bit of funding that was designated for NACOSAR was not received. It lacks any staff or legal counsel. It is not effective as a serious mechanism for providing first nations input. The original concept for NACOSAR, before it got watered down when SARA was first enacted, should be revisited. That concept would have seen six aboriginal leaders forming a council with three federal ministers of the crown to provide advice to the Canadian Endangered Species Conservation Council.

Even though attempts have been made to carry out the section 35 Constitution Act duty to consult, resources for being consulted on a level playing field are rarely, if ever, taken into consideration. Attempts to identify critical habitat on privately held lands have elicited the destruction of would-be critical habitat, resulting in the destruction of species habitats with no legal recourse. Repeated attempts by Walpole Island First Nation to move forward with section 11, 12, and 13 agreements under SARA to support recovery and conservation actions have failed as a result of unwillingness and lack of cooperation by Environment Canada, the Department of Fisheries and Oceans, and Parks Canada.

Walpole Island First Nation's resentment about SARA: first nations are the only communities affected. Critical habitat designation is equal to a land grab if done without first nations consent. Critical habitat orders on reserve lands under section 58 should require first nations consent. On the lack of certainty and clarity on compensation, there is a lack of certainty about whether holders of certificates of possession under subsection 20(2) of the Indian Act and the first nations as a whole are included within the scope of section 64 of SARA. Also, if our traditional territory outside of our reserve, which includes our aboriginal title claim area, is affected by critical habitat orders, we have seen nothing to say that compensation would be awarded to us for those effects. Compensation should be awarded for these kinds of serious impacts on our rights and our claims.

On the growing population and housing shortage on Walpole Island First Nation and no accommodation for or consideration of this, the consultation requirements in SARA have led to nothing more than tokenism when our first nation has been consulted. When we provided input into the development of a recovery strategy, our input was not responded to in any detail and our input was not reflected in the strategy. There is little respect for what first nations communities are doing with respect to conservation.

Aboriginal peoples have different ways of caring for the land versus SARA's approach. For example, in Walpole Island First Nation, the land is us. Land is sacred, a sacred responsibility. We have different lists of species from SARA . We would include sweetgrass or other important plants in decline. We wouldn't prioritize species as in SARA. All are equally important. A holistic approach is necessary, rather than SARA's individual species approach.

Walpole Island First Nation has different ways of working with people to care for the land versus SARA's approach; community-based conservation, use of and involvement with the land is critical. “Out of sight, out of mind” equals the biggest threat to habitat. We need to save the land and people at the same time. Each nation has its own approach to caring for the land. One solution doesn't fit all.

Walpole Island First Nation is doing something right. The first nation is an oasis of green with over 60 species at risk, compared to surrounding regions and non-native communities. Walpole Island First Nation equals good conservation. The proof is in the pudding: our first nation is home to some of the most diverse habitats remaining in Canada, including tallgrass prairie and oak savanna habitats, deemed globally imperilled due to habitat losses elsewhere; one of the largest contiguous tracts of woodlands and forests in southern Ontario; and one of the largest coastal wetlands systems in the Great Lakes basin and rich coastal waters.

Beyond SARA, Walpole Island First Nation wants to co-lead in its traditional territory with the federal crown on conservation and recovery planning and implementation, focusing on biodiversity. To achieve this objective, at least in part, SARA should be amended at least so that recovery strategies and action plans as well as critical habitat orders on reserve lands would require first nations consent. Walpole Island First Nation wants to govern species at risk work on the first nations land base and to lead in policy and strategies throughout our traditional territories.

Walpole Island First Nation wants to share with others values and knowledge so that species can survive and thrive.

Original Anishnaabeg teachings and principles will lead to healthy land, people, and values in the future for the benefit of everyone.

Walpole Island First Nation wants what is shared to be honoured and treated with respect.

Meegwetch.

[The Chair, Conservative, James Bezan]

Meegwetch. Thank you very much for your opening comments, Councillor Johnson.

We have roughly half an hour with our witnesses, so I'm going to suggest that we just do the first round of seven minutes each.

With that, Mr. McGuinty, could you kick us off?

[David McGuinty, Liberal, Ottawa South, ON]

Thanks, Chair.

Thank you, gentlemen, all four of you, for being here.

Could I start with CAP for a second and get a sense of this fuller integration of aboriginal traditional knowledge?

I am very naive in asking this question. I know a little something about ATK. But is it the view of the Congress that ATK ought to be treated equally with respect to, for example, scientific findings by COSEWIC? Should ATK knowledge be able to trump COSEWIC science? I don't understand exactly why there is this need, I guess, to more mainstream ATK knowledge. I guess by implication what you're saying is that aboriginal traditional knowledge is being ignored or marginalized or that COSEWIC science is trumping ATK. Can you help us understand?

[Alastair MacPhee]

Thanks for the question. I'll take one step backwards so you can see how this evolved.

When the original legislation was being negotiated, the aboriginal working group had a very firm position that there would be COSEWIC, which would be the scientific side, and there would be an ATK committee, which would be absolutely equal and parallel. We butted heads over that. I'm sure that my friends from Walpole Island remember that. Dean Jacobs was there. We spent a lot of time fighting over this. Finally, the aboriginal organizations compromised and agreed to an ATK subcommittee within COSEWIC.

So working out exactly how it works within COSEWIC has taken some time.

The important point I was trying to raise in my opening remarks is that this is only in connection with the assessment process. The big gap in SARA is on the recovery side. We want to see more ATK being used on the recovery side.

[David McGuinty, Liberal, Ottawa South, ON]

In the first instance, Mr. MacPhee, then, can I take it that there is conflict between ATK and COSEWIC science?

[Alastair MacPhee]

I think that would depend on the issue. I'll defer to my colleague, Joshua, who might be able to answer.

[Joshua McNeely, Policy Advisor, Congress of Aboriginal Peoples]

Yes, there are instances when there is conflict, and in our view, that conflict is fine. The way it is happening right now with a lot of species is that we have science assessments and we have ATK backup to that scientific knowledge. Traditional knowledge, though, is very different from science in its world view, in its scope, and in what it considers relevant. Neither is better than the other. They are different ways of looking at it. If both are considered equally, we will have a much, much better understanding of the species than we would have if we used one science alone.

[David McGuinty, Liberal, Ottawa South, ON]

Thank you.

To our representatives from Walpole Island, I'm having a difficult time understanding exactly what you're asking for.

Let me ask you this question. There seem to be all kinds of consultative processes inherent in this act. There is NACOSAR; there are other bodies like SARAC. You have emerging groups from industry and environmental groups coming together in frustration, trying to arrive at some kind of consensus.

Let's say one serious consultative process could be struck with aboriginal peoples, environmentalists, industrial interests, academics, and perhaps even labour representatives, representing in large part the interested stakeholders—I'm not trying to reduce aboriginal peoples to stakeholders, so bear with me. It would have more meaningful processes--for example, there wouldn't be a group chaired by an assistant deputy minister of the federal government, which in my view is a conflict. How do you chair a process that makes recommendations to yourself, for example?

Could you accept the notion of having one consultative body, where aboriginal peoples were fully and comprehensively represented, to advise on improving, or advise on these matters?

[Kennon Johnson]

That's a somewhat complicated question. I look at it similar to the way I look at SARA. In our opening comments we said that no one shoe fits everybody. Even from first nation to first nation, what they request will be somewhat different. A lot of that is based on the traditions and teachings of each particular nation.

For example, the standards of the Anishnaabeg, which I come from, are somewhat different from those in a community like Six Nations. You can get the sense that there's no one simple answer. I wouldn't speak on behalf of Six Nations, or any first nation other than our own community.

Going back to our earlier arguments, that's why we were talking about a nation-to-nation approach. What Walpole Island requests would be somewhat different from any other first nation due to the complexity that our first nation faces. We're unique in the sense that we're butted up against the Canada-U.S. border, and our homeland is home to the Three Fires Confederacy, which includes three nations as a whole.

I'm not sure if that helps you, but that's the best way I can explain it at this time.

[The Chair, Conservative, James Bezan]

Thank you very much. Your time has expired so we'll move on.

Monsieur Bigras.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you very much, Mr. Chair.

To say the least, this is complicated, I feel. Let us try to sort it all out. As I understand it, you want aboriginal traditional knowledge, ATK, to play a greater role in COSEWIC's work.

But in the Species at Risk Act, there is no definition of aboriginal traditional knowledge. My question goes principally to the representatives from the Congress of Aboriginal Peoples.

Do you think that there should be some kind of definition? At the moment, we are essentially in limbo, just like our legislation.

[The Chair, Conservative, James Bezan]

Mr. MacPhee, do you want to answer?

[Alastair MacPhee]

Yes. I hope that a representative of the aboriginal traditional knowledge subcommittee will actually show up to speak directly to this committee. I think that would be a better approach. But in our view, the people on the aboriginal traditional knowledge subcommittee, the subcommittee of COSEWIC, act as what we would call pathfinders. They really direct the research to the appropriate people in the community who are the holders of the aboriginal traditional knowledge.

One problem that has arisen is in the recovery stage. We have multiple teams heading out, because it's a complex act, as you recognize. You have, for example, DFO out looking for the traditional knowledge, you might have Parks Canada out there, and you might have the Canadian Wildlife Service, so it's a bit chaotic. We've certainly heard from various elders who have told us that they're tired of being pestered by so many different people knocking on their doors. So the recovery stage needs to be straightened out in the process area.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I would now like to touch on the question of putting species on the list. The act provides for a nine-month timeframe. Officials have told us that they cannot comply with that timeframe because something more fundamental has to be dealt with, aboriginal land claims.

It is almost as if the officials are telling us that they are consulting you and that they are making sure that everything is going well. But you are telling us that there is not necessarily any consultation.

Do you believe that considering aboriginal land claims and observing them is a good reason for failing to put species on the list?

[Alastair MacPhee]

I'll turn that question over to Joshua.

[Joshua McNeely]

The nine-month timeframe is a little bit of a misnomer in the act. COSEWIC, when it delivers its report, doesn't deliver it to cabinet. It goes to the Minister of the Environment. The Minister of the Environment then delivers it to cabinet. When he delivers it to cabinet, that's when the nine-month period starts.

When the minister has it, there's a lot of discussion there as far as consultation is concerned. You can have short consultation periods of only a few months. I've had extensive consultation periods going on for a year or more. There are a number of species—cusk, for example, and American eel—a lot of marine species, actually, that were assessed in 2006-07, which still haven't been presented to cabinet yet for that nine-month period to start.

There is a lot of discretion there already, but at the same time, we still aren't seeing some of the consultation happening during that period—which we would assume is what the minister would be doing during that period, along with the preparation of the socio-economic impact statement and the draft of the risk assessment strategies, the RAS.