Environment Committee on May 28th, 2009

[The Chair, Conservative, James Bezan]

I call this meeting to order.

A fire alarm at the Confederation Building is delaying some of the members in getting here.

We are continuing with our study on the statutory review of the Species at Risk Act.

Joining us today is Jeffrey Hutchings, who is the chair of the Committee on the Status of Endangered Wildlife in Canada.

I welcome your comments at this time.

[Professor Jeffrey Hutchings, Chair, Committee on the Status of Endangered Wildlife in Canada (COSEWIC)]

Thank you very much.

Thank you, Mr. Chair and members of Parliament, for the invitation to appear before the committee.

I'm here in two capacities, as my written brief indicates. The first is as chair of COSEWIC. The second is in my capacity as professor of biology and Canada research chair at Dalhousie University, where my research focuses on matters of basic and applied importance to the ecology, evolution, exploitation, and conservation biology of fishes.

I began my written brief with a quote from Gro Harlem Brundtland, Norway's former prime minister, who wrote:

I recently came across an article written by a Norwegian scientist during the 1970s, when I was Norway’s Minister of the Environment. In the article he argued that there was no such problem as acid rain and that ‘facts’ and ‘science’ did not belong in the arena of politics and policy. This assertion was counter to my own beliefs and made me react strongly. Politics that disregard science and knowledge will not stand the test of time. Indeed, there is no other basis for sound political decisions than the best available scientific evidence. This is especially true in the fields of resource management and environmental protection.

With this statement, Norway’s former prime minister acknowledges the integral role of science in particular realms of public policy. Her assertion underscores a widely accepted premise that the assessment, conservation, and recovery of biodiversity must be underpinned by the best available information and by the provision of objective advice.

There are many examples of independent bodies charged with the task of providing unbiased advice on matters of concern to society. These include judicial inquiries, royal commissions, and expert panels. These bodies are expected to provide advice to decision-makers and information to society unfettered by the consequences of that advice and uninfluenced by socio-economic or political concerns. This is the milieu in which COSEWIC provides advice on the status of species at risk in Canada.

Although formed in 1977, it was not until the passage of the Species at Risk Act, SARA, in 2003 that COSEWIC was established by legislation as the advisory body responsible for the assessment of Canadian species at risk. In the international context, COSEWIC is unique in terms of its breadth of mandated responsibilities, extent of membership inside and outside government, and capability to assess the status of species at heightened risk of extinction.

COSEWIC undertook its first assessments in April 1978. These were restricted to birds and terrestrial mammals. The taxonomic breadth of the committee's assessments expanded in the 1980s to include fishes, plants, reptiles, and amphibians; and in the 1990s to mosses and lichens, molluscs, and arthropods.

COSEWIC has two primary functions. The first pertains to species status assessment. Based on status reports, COSEWIC assesses the status of and identifies threats to species considered to be at heightened risk of extinction. The second key function pertains to communication. COSEWIC communicates its assessments to all Canadians at the same time that it communicates them to federal, provincial, and territorial governments, and to wildlife management boards. These communications are made immediately after each of COSEWIC's biannual species assessment meetings. Formal communication of COSEWIC's assessments to the federal Minister of the Environment initiates the legal listing decision process articulated by SARA.

COSEWIC is an independent national advisory body. It is not a federal agency, not a conservation organization, not a management agency, or a government department. Opinions, duties, and votes are not based on jurisdictional or any other affiliation. Each member of COSEWIC and of the aboriginal traditional knowledge subcommittee is appointed by the Minister of the Environment. These are ministerial appointments, not political appointments. If COSEWIC's appointments were perceived to be political, the independence of COSEWIC and the apolitical nature of its assessments would be under question, thus undermining the act.

COSEWIC's status assessments are based on reports that detail the best available information, including western science, aboriginal traditional knowledge, and community knowledge that pertains to the status of a wildlife species. These reports are subjected to extensive, open, and transparent external review by jurisdictions and their scientists, independent experts, university biologists, and industry-based scientists. The status report review period typically lasts one and a half to two years.

The status report on polar bears, for example, took two years to prepare, went through three major drafts, and was reviewed by more than 70 individuals before COSEWIC assessed the species in 2008.

As of May 2009, COSEWIC had assessed the status of 796 wildlife species, finding 585 of them to either be extinct or species at risk, meaning they are extirpated, endangered, threatened, or of special concern. There has been insufficient information to assess the status of an additional 45 species, and 166 others have been deemed not at risk. Plants and fishes are the taxonomic groups with the greatest number of species at risk in Canada.

COSEWIC bases its assessments on quantitative criteria similar to those developed by the World Conservation Union, or IUCN. These criteria consider information that pertains to changes in the abundance and distribution of species and their habitats that might increase a species’ probability of extinction.

Since the passage of SARA, approximately 85% of the species status assessments received by the Governor in Council from the Minister of the Environment have been accepted and the species included on the legal list. Marine fishes comprise the species group least likely to be included on schedule 1 of SARA; government has consistently rejected COSEWIC's advice to list an endangered or threatened marine fish.

Of the seven summary report points I've provided, I'll touch upon two before turning to the recommendations. As a reminder, COSEWIC is a national advisory body for which membership is inclusive of government but within which decisions are made independently of government. COSEWIC's advice is based on the best available biological information pertaining to a species status, irrespective of the perceived political and socio-economic consequences of the advice.

I'll turn to the two recommended amendments to the Species at Risk Act that COSEWIC proposes. The first pertains to the timeliness of the communication of COSEWIC's advice and to the legal listing decision timeline. That is the time period that elapses from when COSEWIC submits an assessment to the Minister of the Environment to when the legal listing decision is made by the Governor in Council.

Since the passage of SARA, listing decision timelines have been affected by pre-listing consultations between government and parties potentially affected by legal listing decisions. The period of normal consultations has typically been three months after the issuance of the response statement by the minister; however, extended consultations for some species have taken more than five years, and some are still ongoing.

For example, among species considered for listing between January 2004 and August 2006, and excluding those that fall under the Nunavut Land Claims Agreement, 30 species have been subjected to consultation periods greater than one year. Almost all of these are fish. As of May 2009, listing decisions had been reached for 11 of these 30 species, the average SARA listing decision time being two and a half years.

The remaining species, 19 of them, all aquatic, for which a listing decision has yet to be made, are still being subjected to the extended consultation period. As of today, an average of three and a half years has passed since COSEWIC assessments for these species were first communicated to the Minister of the Environment. Indeed, there are three aquatic species that were submitted in the first batch under SARA in January 2004 whose assessments have yet to be received by the Governor in Council. A period of five and a quarter years has now passed for two threatened fishes and an endangered freshwater snail.

SARA does not provide a timeline for the receipt of an assessment by the Governor in Council. This has resulted, in the opinion of some, in a level of ministerial discretion that may not have been anticipated by parliamentarians when SARA was passed. The Standing Joint Committee on the Scrutiny of Regulations, for example, has characterized this discretion as a defect of the act and has concluded “that the failure to provide for the delivery to, and receipt of, an assessment by the Governor in Council reflects an unintended gap in the scheme established by the Act”.

Delays in the species listing process negatively affect COSEWIC's ability to fulfill its obligation to base its assessments on the best available information on the biological status of a species. The longer the delay in reaching a listing decision, the greater the likelihood that new information will become available that may or may not have an influence on species status. Thus, the longer the listing decision timeframe, the greater the likelihood that an assessment will be referred back to COSEWIC, a decision that would further prolong the listing process and increasingly postpone recovery strategies and habitat protection measures.

As a consequence, COSEWIC recommends that SARA be amended to provide a timeline for the receipt of COSEWIC's assessments by the Governor in Council that is consistent with Parliament's original intent that action on an assessment be taken within a fixed period of time. It is thus recommended that a new subsection 25(4) be included, to read:

Subject to subsection 27(2)(c), within three months of receiving a copy of an assessment of the status of a wildlife species from COSEWIC under subsection 25(1), the Minister shall forward the assessment to the Governor in Council.

Acceptance of this recommendation would result in a listing decision timeline that would be well defined and transparent, that would be consistent with what Parliament intended when it originally passed the act, and that would minimize delays in the listing decision process, thus reducing delays in recovery planning and implementation.

The second recommendation pertains to membership on COSEWIC. In this regard, of fundamental importance is the condition that each member of COSEWIC must exercise his or her discretion in an independent manner--the act specifies this--meaning that votes on species' status, and any other duties assigned to individuals as members of COSEWIC, are not to be influenced by members' affiliations. The provision of unbiased advice facilitated by COSEWIC's independence and arm's-length nature is a fundamental tenet of the committee's continuing ability to fulfill its mandate under SARA.

Since the passage of SARA, COSEWIC has implemented an open and transparent process that ensures that the names of only the most highly qualified available individuals are communicated to the Minister of the Environment for appointment to COSEWIC. The process ensures an optimal balance between experience and renewal.

Since the passage of SARA, four successive ministers have accepted COSEWIC's nominees for membership on COSEWIC and issued appointments to all. This well-established precedent ended with the March 2009 decision not to reappoint COSEWIC's nominee for co-chair of the amphibians and reptiles species specialist subcommittee.

[Mark Warawa, Conservative, Langley, BC]

I have a point of order.

[The Chair, Conservative, James Bezan]

Go ahead, Mr. Warawa, on a point of order.

[Mark Warawa, Conservative, Langley, BC]

The topic is not the membership of COSEWIC. The topic is a legislative review of SARA. I bring that to your attention and ask that we stay on topic.

[The Chair, Conservative, James Bezan]

I'll take that under advisement, although I think COSEWIC membership is described in the regulations under SARA, is it not?

[Mark Warawa, Conservative, Langley, BC]

Yes, but to criticize how the appointment process is made under COSEWIC is not on topic.

[The Chair, Conservative, James Bezan]

Go ahead, Mr. Cullen, on that point of order, and then Mr. McGuinty.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I expect I'm falling in line with your notion of this. The committee has been charged with looking at COSEWIC. The membership of COSEWIC is also pertinent. I'm not sure what Mr. Warawa's sensitivity is to the one statement made by the witness, but he's clearly expert in his field and I think we should hear his testimony.

[The Chair, Conservative, James Bezan]

Mr. McGuinty, do you want to comment on this point?

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Chair, Dr. Hutchings has probably a statutory responsibility to raise this matter. If he sees concerns creeping up with respect to the appointments process and the membership of COSEWIC in its exercised functions under SARA, then I think it's completely appropriate. If he hadn't raised this point, I would have asked the questions myself.

[The Chair, Conservative, James Bezan]

Go ahead, Mr. Watson.

[Jeff Watson, Conservative, Essex, ON]

I had a little bit of a check about where the testimony was going. It now creeps into the purview of what's in cabinet's purview to do or not do in rendering such.... I think this crosses the line somewhat, and I support the point of order by Mr. Warawa. I think the witness needs to be cautioned to come back to the issue. I think it's fair enough to talk about the membership of COSEWIC, but when you start to get into a decision by cabinet, I think how they approach that particular decision is not within the purview of the witness.

[The Chair, Conservative, James Bezan]

Next are Mr. Woodworth, Mr. Trudeau, and Mr. Bigras.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

I suppose I'll start with the proposition that the committee is here to review the legislation, and if that's what we're here to do, then that's what I'd like to do. Perhaps the chair or the clerk could remind us of our terms of reference with respect to SARA. Is it to review the legislation or not? Is it to do something more than review the legislation? What are our terms of reference in that respect?

[The Chair, Conservative, James Bezan]

We'll continue, and I'll hear all the points first.

I have Mr. Trudeau and then Monsieur Bigras.

[Justin Trudeau, Liberal, Papineau, QC]

When we speak about the legislation, an important part of SARA is the establishment of an independent review body, COSEWIC, and great lengths have been gone to in the legislation to ensure that it be a scientifically, rigorously appointed panel and study removed from all politics. The exercise of COSEWIC's functions and the utility of SARA as an act are dependent upon the quality of the science that comes forward from COSEWIC. Therefore, talking about the membership of COSEWIC and the process by which these expert scientists are chosen independently of politics is the very crux of SARA and COSEWIC. To not hear about that, however embarrassing it may be, is completely wrong.

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

I do not want to stir up a debate like Mr. Trudeau, but I feel that the witness's remarks are at the very heart of the current debate and the review of the act. If we let the witness continue, we will realize that he has even proposed amendments for the Species at Risk Act. We are in the middle of reviewing the act. The witness is speaking directly to the topic and he is going to provide us with his proposed amendments. That being the case, I feel that he is perfectly entitled to continue his testimony in the way he has been presenting it up to now.

[The Chair, Conservative, James Bezan]

Mr. Watson.

[Jeff Watson, Conservative, Essex, ON]

The witness has gone to great lengths to talk about COSEWIC as being apolitical. But the decision for appointments and the review of such appointments are entirely political. That is, it's a political function to make an appointment and to determine whether or not that appointment is independent, if you will, in terms of who is being appointed. And it's the political process of Parliament to review the appointment and determine whether the government's judgment about a particular member is in fact independent. That's the purview of politicians and not of the witness before us today.

I would urge the chair to strongly caution the witness to stick to things that are in his apolitical jurisdiction.

[The Chair, Conservative, James Bezan]

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I don't think there's anyone around this table who would disagree with the principle and the fundamental value that the advisory bodies should be independent and not political and should not have political or bureaucratic influence. I think we all agree with that.

What I think is happening is that when the body politically criticizes a decision of the minister, then that body has crossed the line.

The topic of today is to review SARA; it's not to criticize a decision made in 2007 by a minister. I think we need to stay on topic. It's a SARA review; it's not for our witness to criticize a minister and a decision of the minister. That becomes political, and it's off topic.

[The Chair, Conservative, James Bezan]

Mr. McGuinty.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Chair, I don't think this is a point of order. I think this is a point of debate. I don't see what's out of order here in any sense.

[The Chair, Conservative, James Bezan]

I believe there was a point of order raised, and I'm going to rule on that point of order.