Bill C-5 (Historical)

Species at Risk Act

An Act respecting the protection of wildlife species at risk in Canada

Species at Risk Act

[Karen Redman, Liberal, Parliamentary Secretary to the Minister of the Environment]

Mr. Speaker, one of the most noteworthy aspects of the species at risk act and the one that has drawn a great deal of attention is the provision it makes for compensation. I would like to address my remarks today to this part of the bill.

Clearly wildlife does not live within a certain set of boundaries that we can just cordon off to protect them. We cannot tell the piping plover to build its nest only on a protected lakefront in Saskatchewan any more than we can tell the loggerhead shrike to stay away from cattle grazing areas.

We do have protected wildlife areas and sanctuaries and we are getting more all the time, but we cannot simply turn all of Canada into a protected area. Farmers, trappers, fishers and woodlot owners and their families are the people who make their livings from the land. Many of them have done so for centuries. We need to work together with the people who are using the land and waters in a way that also protects habitat as much as possible. We need to work with farmers, ranchers and trappers to find means to look at total land use including habitat protection. We call this stewardship. We call this a conservation approach.

This working relationship is important for many different reasons. By fostering stewardship we are emphasizing the co-operative process first when it comes to habitat protection. We understand that Bill C-5 is strong legislation. There are prohibitions where they are needed, but these prohibitions are designed to come into effect when the co-operative approach does not work.

We know from firsthand experience that most people want to do the right thing. During the development of the legislation, which has been nine years in the making, we realized that should a situation arise where the co-operative approach does not work and the prohibitions kick in, the legislation would also have to provide authority to compensate for losses that are suffered as a result of extraordinary impact.

We also realized this compensation regime was something quite unique. We are not afraid of making new policy. That is what we were elected to do, but extreme care must be involved in this very important aspect of the legislation.

We have looked at examples of other compensation regimes for land use restrictions though there was not much to choose from. We have consulted far and wide. There are many different views and the process has proved to be much more complex than we originally had thought.

We have no intention however of abandoning the idea. It is quite the opposite. We know what compensation will not be. It will not be a superfund that pays resourced based companies for not mining or for harvesting. We will continue the many partnerships that have grown over the years with large forestry and mining companies, with fishers, with farmers and with others, partnerships that are building conservation and stewardship into the way they do business. Integrating conservation and stewardship into the way of doing business is not just good for species and their habitats. It is just plain good business. It is sustainable development.

Our approach to compensation will be open and will be transparent. For now determinations of compensation will be made on a case by case basis. Clearly we truly need several years of practical experience in implementing both the stewardship and the recovery provisions of the species at risk legislation and in dealing with the question of compensation. This will give us more to draw upon in forming the precise eligibility requirements because we will know so much more about the value, the process and the eligibility.

In the meantime there will not be a void. We will develop general compensation regulations soon after the act is proclaimed. These regulations will specify the procedures to be followed for claiming compensation. This will enable the compensation provisions to be used should an extraordinary situation arise.

Work has begun already on developing these general compensation regulations. We will be able to develop more detailed regulations after several years of practical experience in implementing the stewardship and the recovery provisions of species at risk and in dealing with the question of compensation. Then we will know much more about the methods to be used in determining the eligibility of a person for compensation, the amount of loss suffered by a person and the amount of compensation in respect of that loss.

We are committed to continued thorough consultation with everyone who can help us gain the experience and who has a stake in a fair and effective system. The government is moving to restore the discretion by the order in council to make regulations in a way that is consistent with standard practice of other laws.

The direction provided by the standing committee says that compensation should be fair and reasonable. That is maintained in the government's motion. The commitment to compensation remains a commitment to be fair, to be open, to listen and to move carefully in designing a regime that works for everyone.

[Bob Mills, Canadian Alliance, Red Deer, AB]

Mr. Speaker, the single biggest flaw in the bill is that the species at risk legislation will never be effective. It will be a failure because it fails to deal with the issue of compensation for landowners who will suffer economic losses as a result of the implementation of measures to protect species at risk and their habitat.

Compensation. The word sounds so grasping, so selfish, so un-Canadian. Why would people expect to get paid for obeying the law? Why should property owners not be willing simply to absorb the cost themselves in the service of a greater social good?

When people's livelihoods are at stake, they have a different view of things. Maybe a farmer will have to leave sections of land untouched for a number of years, or adopt farming practices to accommodate nesting birds. Maybe areas of the forest will be off limits during migration.

There are lots of ways property owners and resource users will be affected, some temporary, some permanent. In many cases they will face costs, lost income from not being able to use their land, or perhaps actual costs incurred to protect habitat or provide for individuals of an endangered species.

It is completely incorrect to think that farmers, for example, are just sitting there waiting for the government to put compensation into the bill so they can sell their land. Some members seem to imply this. The government seems to think that every farmer just wants to get rid of his land and that they will react that way to this legislation. Anyone listening to the minister talk about compensation would think that he believes that.

For the farmers and ranchers whom I know, their land is their life. Often it has been in their family for generations. They are not looking for an easy way out or to sell it to the government. They respect the wildlife on their property and would be happy to work co-operatively in a voluntary stewardship program. However when costs arise they do not want to be left holding the bag. Losing 10% of their land could easily put a farmer or rancher out of business.

No doubt the minister will say that the bill recognizes the principle of compensation. Let us look at the bill. Yes, it does say that the minister may, and I emphasize the word may, provide compensation. It is good that is there. The government even seems willing to retain the committee's wording of fair and reasonable compensation. That is even better.

However, in Bill C-5 any compensation that is left entirely to the minister's discretion will not be fine with the farmers I know. These will be hollow promises. “Trust us” is not something that people will accept. Until property owners and resource users know the losses they will suffer and the compensation that will be there, this bill will not work.

Instead, what has the government done in the legislation? It is moving to reverse what the committee did and instead make even the very drafting of regulations at the minister's discretion. He might, he might not. That is not very convincing. Again as I have said, most people will not accept “trust us”.

It would have been a token of good faith had the minister tabled the draft regulations for us to look at prior to the bill being passed. He has promised to have a draft ready soon after royal assent. That does not do anything to convince people that the act will be fair to them. What can they expect if he will not even put it in the bill?

In practice, what does the bill mean when it says that compensation will only be in the case of extraordinary impact of regulatory restrictions? Can people trust the process to be fair? The minister owes Canadians answers to these questions.

In fact, the only public picture of what the regulations might look like is the Pearse report. Obviously, the government has ruled out the Pearse report, but many people have read it and are concerned about it.

The very principle by which we have this legislation is the UN convention on biological diversity which Canada signed. This convention recognizes that because the objective of maintaining bio- and ecosystem diversity is so important, costs must be equitably borne by everyone and not just primarily by developing countries.

Applied at home, this principle would mean that landowners should not bear the cost of species protection but that since they are helping to achieve a greater social good, compensation should be extended to offset any losses that might result. The Species at Risk Working Group also recognized this in its brief to the standing committee. It wrote:

SARWG strongly urges Parliament to...recognize that the protection of species at risk is a public value and that measures to protect endangered species should be equitably shared and not unfairly borne by any individual, group of landowners, workers, communities or organizations. Provision for compensation helps to balance the effect of efforts to protect species at risk and instills necessary trust among all stakeholders.

The bill should specify that. It was amazing to hear industry, environmentalists, farmers, ranchers and foresters all saying that the whole of Canada could benefit by sharing that load of protecting those species at risk.

We believe in protecting these species at risk. That is the most important thing. If a government says it is going to take people's land, affecting their incomes and livelihoods, then obviously we are concerned that the ones who will be threatened even further are not only the landowners but the species that are at risk.

There are lots of examples internationally. Tasmania has a threatened species protection act which it introduced in 1995. It states that a landowner is entitled to compensation for financial loss suffered directly resulting from an interim protection order or a land management agreement.

In the European Community, a person who is required to comply with a notice under section 36 is entitled to compensation for financial loss as a result of being required to comply with that notice.

Switzerland runs an integrated production program, a voluntary scheme whereby farmers are given standard amounts based on profits forgone in return for agreeing to certain restrictions.

The U.K. has a natural habitats regulation which it introduced in 1994. It states:

Where a special natural conservation order is made, the appropriate nature conservation body shall pay compensation to any person having at the time of the making of the order an interest in land...who...shows that the value of his interest is less than it would have been had the order not been made.

Those are international examples. Nowhere, except it appears in our country, are people expected to give up their lands and livelihoods for the sake of the public good.

In the committee the minister even reported to us about his concern. He said that he would like to have compensation in the bill but that he lost the battle in cabinet. In fact in a leaked letter from the then minister of fisheries he said “I won't go along with any compensation”. It appears that is what happened more than the reality of trying to protect endangered species.

Environment Canada has said it knows there will be problems if compensation is not in the bill. It is easy to use all of the international examples and to talk about what people are telling us on the ground. Compensation does not have to be money. It can be land swaps. It can be tax breaks. It can be all kinds of things such as help with fencing or different equipment. There are lots of things that should be part of the bill but are not. There are lots of examples as well where it has worked to help save species.

I implore the government to look at the bill again. If it really cares about endangered species, it will include compensation in the bill.

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

Mr. Speaker, I am pleased to speak today on Bill C-5, which we have had the opportunity to examine in committee. A number of amendments were introduced in committee, some of which were rejected and others accepted.

This is an important bill. Hon. members must keep in mind that Quebec has had endangered species legislation since 1990. This was introduced by the Liberal government of Quebec and passed by the Quebec National Assembly with a very large majority, if not unanimity.

To put ourselves in context, Quebec had this legislation from 1990 onward, along with fishery regulations and a wildlife conservation act. So, as far back as 1990, Quebec was in the vanguard as far as the protection of endangered species was concerned, 11 years ahead. As well, as far back as 1996, the provinces and the federal government entered into what was called the Accord for the Protection of Species at Risk, which committed them as follows, and I quote:

Federal, provincial and territorial Ministers responsible for wildlife commit to a national approach for the protection of species at risk. The goal is to prevent species in Canada from becoming extinct as a consequence of human activity.

This was signed in 1996, six years after the Quebec endangered species legislation.

We are not opposed in principle to legislation protecting species and habitat in Canada, provided it applies to federal territory, affects crown land and national parks, and we might go so far as having the Migratory Birds Convention, which we acknowledge as federal jurisdiction, come under the federal legislation we are looking at today.

Where we do have a problem is that with this bill, clause 34 in particular, the federal government is preparing what is termed a double safety net. This means that, from the very moment the federal government of its own accord, the national accord notwithstanding, decides that the Quebec legislation, or the province is not protecting its species and its habitat sufficiently, the federal legislation is going to kick in and apply to the entire territory of Quebec, regardless of what has been enacted by the National Assembly, despite its endangered species legislation, its wildlife conservation legislation and its fishing regulations. This is totally unacceptable.

It is also totally unacceptable that certain amendments proposed in committee will end up determining the mechanism that will trigger the safety net. Not only are some of the amendments proposed in committee unacceptable to the Bloc Quebecois, but they are also unacceptable to the Liberal government opposite.

On this subject, I received a missive last week, a letter from the Minister of the Environment, who indicated that some of the amendments proposed in committee strengthened the federal government's ability to determine how the safety net would be triggered.

Some of the amendments will have the effect of giving the federal government more power in determining how the safety net will be established. This will apply despite the fact that an accord was signed in 1996, as I mentioned, to protect endangered species.

The minister's letter specifies that the provisions of the safety net set out in Bill C-5 are there to ensure that, and I quote the minister:

If a province or territory fails to live up to the commitments that it has made under the accord, the federal government will react. However, it is up to the provinces and territories to act within their jurisdiction.

It makes no sense to have legislation that does not apply to provincial lands, yet have in the same bill, based on one single clause, a safety net that is triggered and that would apply to a province. This is somewhat troubling, particularly because Quebec already has its own legislation on endangered species and species at risk.

It is also important to point out that this bill creates what are known as enforcement officers. These federal enforcement officers will be responsible for enforcing the federal act, even in the case where the safety net is triggered in a province.

We can ask ourselves the following question: who will be responsible for the protection of species in Quebec? Will it be wildlife conservation and protection officers under the provincial legislation or federal agents?

The government must not act like a police officer. Rather, it must co-operate and promote harmonization, as is provided in the national Accord for the Protection of Species at Risk since October 1996.

So, it is rather disturbing to see what the government is about to pass in the House, because this act might apply in Quebec if we had not passed our own legislation. However, in spite of the fact that Quebec has its own legislation, the federal government is about to steamroll the work done by the province and this is rather disturbing.

It is also rather disturbing to see that the federal government has decided to assume the authority to protect endangered wildlife species in Canada. It is also disturbing to see that it refuses to give the necessary additional funds and to set up the mechanism through which landowners will be compensated.

As we know, the Pearse report—and the Canadian Alliance member referred to it earlier—recommends that a landowner be compensated when the losses that he absorbs exceed 10%. If these losses reach 10%, a compensation mechanism would come into play and 50% of the property's market value would be paid back.

If the federal government really wants to protect endangered species and make this a priority, it must inevitably ensure that assistance and compensation to landowners reflect its priorities.

Therefore, we will support the first group of motions by Canadian Alliance members, because we feel that protecting species also implies compensating people. So, we will support these motions. I will come back later on in the debate.

[Bob Mills, Canadian Alliance, Red Deer, AB]

Mr. Speaker, I rise on a point of order. I would like to speak to the motions that you have ruled out of order, Motions Nos. 40 to 42, and that entire list, and Motion No. 110 which I believe you ruled out of order as well.

I have several arguments. The first one is based on the importance one of the motions has for landowners. The bill talks about being guilty until proven innocent. This goes against all principles and destroys the goodwill many landowners will have in dealing with the legislation.

The chairman of our committee, the member for Davenport, did an exceptional job of working with our committee. Our committee worked in a co-operative manner that I have never seen before, certainly as long as I have been in the House. I believe that by exempting these we not only exempt a very important aspect to the landowners but we also exempt something on which, while committee members could not agree on, many members should have a say.

Some of the resolutions were put forward by the member for Skeena, the member for Lanark--Carleton and the member for Lethbridge because they were not on our committee and did not have an opportunity to speak on behalf of the landowners who would be affected by the legislation.

Mr. Speaker, I bring to your attention that the slender mouse-ear-cress and the western spiderwort are endangered species. The only person who would know those species would be a botanist. The argument is that by debating this in the House we could alert the public to the fact that they will need to start finding out what these endangered species are because if the habitat is destroyed or if anything is done to that endangered species they will be guilty of a criminal act.

I have about 20 pages that we could talk about the legal ramifications and I am not even a lawyer. However, this will end up in court cases and take money out of what should go to conservation and be put in the hands of the justice system.

I really feel that the mens rea argument is one that we should strongly put and one that we should be discussing in the House. I just do not believe that by not talking about it and having it in the act that it will be fair to any of those landowners. In effect, they will be guilty until proven innocent, which is not the legal system that I understand and certainly not one that is very defensible. We say that we want to co-operate, consult and build a relationship with landowners but we introduce a bill that does not even identify a critical habitat. If landowners damage it, they will have committed a criminal offence.

I feel it is essential for all members to have the opportunity to talk about those amendments in the House. We are not talking about a driving ticket. We are talking about a criminal offence having been committed. It is not right to simply say that due diligence is the responsibility of landowners. Landowners do not have time to check out every worm, every mollusk and every plant that might be on their land to find out if it is on some list. We must discuss this in the House.

The minister said:

It's a legitimate matter for concern. The accident, the unwitting destruction—it is a concern, and we want to give the maximum protection we can to the legitimate and honest person who makes a mistake, who unwittingly does that.

The minister is arguing that we should discuss this and that it is a major problem in the bill. By exempting those, we are certainly going against that basic principle.

The best solution would be to debate the amendment to the bill which would require what Roman law used to refer to as a guilty mind, mens rea.

The requirement that in order to commit a criminal act a person had to know he or she was doing something wrong, has been the standard division between criminal and civil offences in English common law since the late middle ages. It is absolutely essential in this case but the bill does not take that into consideration. It states that the person is guilty. I believe no one, no landowner or company, will be able to function this way with the legislation.

Let me close by quoting the minister. He said:

We have all seen, as politicians, what happens when people get fearful of their government or angry with government programs. We've all seen the damage that's done to public trust when perfectly reasonable people suddenly decide the government has some hidden and nefarious agenda. There is no reason to stir up those kinds of concerns with this legislation.

The minister's speech writer seems to understand the issue. The only problem is that it is not in Bill C-5.

On that basis I believe all members should have the opportunity to speak to this issue and that we should be looking at mens rea as opposed to due diligence.

[Rick Casson, Canadian Alliance, Lethbridge, AB]

moved:

Motion No. 128

That Bill C-5 be amended by adding after line 3 on page 69 the following new clause:

“124.1 The Minister shall, in all circumstances, advise the affected landowner, lessee or land user of the location of a wildlife species or its habitat.”

Debate arose on the motions in Group No. 1.

[Bob Mills, Canadian Alliance, Red Deer, AB]

moved:

Motion No. 121

That Bill C-5, in Clause 97, be amended by deleting lines 21 to 26 on page 56.

[Scott Reid, Canadian Alliance, Lanark—Carleton, ON]

moved:

Motion No. 111

That Bill C-5, in Clause 64, be amended by replacing line 36 on page 36 with the following:

“sion of compensation, including rules for the recovery of reasonable legal and other costs arising as a result of the compensation claim.”

[Rick Casson, Canadian Alliance, Lethbridge, AB]

moved:

Motion No. 107

That Bill C-5, in Clause 64, be amended by replacing line 15 on page 36 with the following:

“able compensation to any person—including landowners, lessees and other persons affected by or having a legal interests in the property—for losses”

Motion No. 108

That Bill C-5, in Clause 64, be amended by replacing lines 16 and 17 on page 36 with the following:

“suffered as a result of the application of”

[Andy Burton, Canadian Alliance, Skeena, BC]

moved:

Motion No. 105

That Bill C-5, in Clause 64, be amended by replacing lines 14 and 15 on page 36 with the following:

“with the regulations, provide fair market value compensation to any person for losses”

Motion No. 106

That Bill C-5, in Clause 64, be amended by replacing line 15 on page 36 with the following:

“able compensation to any person for loss of use or enjoyment of property”

[Rick Casson, Canadian Alliance, Lethbridge, AB]

moved:

Motion No. 104

That Bill C-5, in Clause 64, be amended by replacing line 13 on page 36 with the following:

“64.(1) The Minister shall, in accordance”

[Scott Reid, Canadian Alliance, Lanark—Carleton, ON]

moved:

Motion No. 103

That Bill C-5, in Clause 64, be amended by replacing lines 13 to 15 on page 36 with the following:

“64.(1) The Minister shall, in accordance with the regulations, provide full, just and timely compensation to any person for losses”

[Andy Burton, Canadian Alliance, Skeena, BC]

moved:

Motion No. 28

That Bill C-5, in Clause 11, be amended by adding after line 29 on page 11 the following:

“(4) The agreement shall provide for fair and reasonable financial or material support, unless there is an agreement otherwise.”

[Rick Casson, Canadian Alliance, Lethbridge, AB]

moved:

Motion No. 13

That Bill C-5, in Clause 6, be amended by replacing line 5 on page 8 with the following:

“6. The purposes of this Act, to be pursued in a manner consistent with the socio-economic interests of Canadians, are to prevent”

[Bob Mills, Canadian Alliance, Red Deer, AB]

moved:

Motion No. 12

That Bill C-5, in Clause 6, be amended by replacing line 5 on page 8 with the following:

“6. The purposes of this Act, to be pursued in a cost-effective manner, are to prevent”

[Rick Casson, Canadian Alliance, Lethbridge, AB]

moved:

Motion No. 1

That Bill C-5, in the preamble, be amended by replacing lines 22 to 24 on page 2 with the following:

“landowners should be compensated for any financial or material losses to ensure that the costs of conserving species at risk are shared equitably by all Canadians,”