Evidence of meeting #25 for Environment and Sustainable Development in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was sara.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Lynn Grant  Chairman, Environment Committee, Canadian Cattlemen's Association
John Masterson  Manager, Federal Regulatory Affairs, Canadian Association of Petroleum Producers
Peter Miller  Legal Counsel, Imperial Oil Resources, Canadian Association of Petroleum Producers
Journey Paulus  Regulatory and Environmental Legal Counsel, EnCana Corporation, Canadian Association of Petroleum Producers
Eli Turk  Vice-President, Government Relations, Canadian Electricity Association
Ed Wojczynski  Vice-Chair, Chair of the Species at Risk Act Working Group, Canadian Hydropower Association
Gary Birch  Senior Technical Advisor, B.C. Hydro, Canadian Electricity Association

9:05 a.m.


The Chair Conservative James Bezan

I will now call this meeting to order. We have quorum, but just barely. We're going to continue on with our study on the Species at Risk Act, as was assigned to us by the House.

We have a number of witnesses here with us today, and I want to welcome all of you to the table.

Representing the Canadian Cattlemen's Association, we have Peggy Strankman, who is the manager of environmental affairs. Joining her is Lynn Grant, who's the chair of the environment committee for the Canadian Cattlemen's Association. Welcome.

From the Canadian Association of Petroleum Producers, we have John Masterson, who is the manager of federal regulatory affairs for CAPP; Peter Miller, who is the legal counsel from Imperial Oil Resources; and Journey Paulus, who is the regulatory and environmental legal counsel for EnCana. Welcome to you.

From the Canadian Electricity Association, we have Eli Turk, who is vice-president of government relations, and Gary Birch, who is a senior technical adviser for B.C. Hydro.

Representing the Canadian Hydro Power Association is Ed Wojczynski, who is vice-chair of the SARA working group with Manitoba Hydro; and Pierre Lundahl, who is an environmental consultant with Lundahl Environment Inc.

Welcome, all of you.

I do ask that you keep your opening comments under ten minutes so we can have a fulsome discussion after your presentations.

9:05 a.m.


Bruce Hyer NDP Thunder Bay—Superior North, ON

Mr. Chair, I just wonder if we might in some way recognize, verbally or otherwise, that it's the 40th birthday of Bernard Bigras, and we should congratulate him on living that long in a political circle.

9:05 a.m.


The Chair Conservative James Bezan

Some day I might get to 40.

9:05 a.m.


Oh, oh!

9:05 a.m.


Jeff Watson Conservative Essex, ON

If you go back in time, you might.

9:05 a.m.


The Chair Conservative James Bezan

Happy birthday.

9:05 a.m.


Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC

Thank you.

9:05 a.m.


The Chair Conservative James Bezan

I don't know if that was a point of order, but with that, we'll move on.

Lynn, could you begin your opening comments? We'd appreciate that.

9:05 a.m.

Lynn Grant Chairman, Environment Committee, Canadian Cattlemen's Association

Good morning, Mr. Chairman, committee members, fellow presenters, and observers.

First I would like to comment that this is environment week, so in addition to happy birthday, we'll have a happy environment greeting.

Thank you very much for the invitation to present to this committee. It is important to begin comments about changes to the Species at Risk Act with a statement that the Canadian Cattlemen's Association supports the intention of the act to protect and recover wildlife species at risk in Canada. The CCA actively participated in the consultations leading up to the act being passed in 2002. We, as an organization and individual producers, continue to participate in activities that support the protection of species at risk.

This morning I will briefly summarize six issues that we think are most important to consider in effectively implementing the act. The Canadian Cattlemen's Association has elaborated on these points and others in a written brief submitted to this committee.

The preamble to this legislation strongly supports a stewardship approach to protecting and recovering species. We have presented three recommendations that will encourage and reward that stewardship. We encourage the government to do everything possible to implement an act that is truly based on a stewardship approach.

We also recommend that there be more support for good management practice, education, and awareness to landowners for implementation of this act. I think it's important to realize that if land managers, specifically the agricultural producers, have the right information, they will do the right thing. We all depend on the land and the health of our soil for our livelihood, so essentially anything that is good for the environment, for our soils, and for our ecosystems is going to be good for our bottom line as well as any species that rely on the land that we operate.

We also recommend exploring the use of economic instruments such as payments of ecological goods and services to conserve the ecosystem. I would like to turn the psychology of some of the legislation around so that we can make the presence of some of these wildlife species an asset to the land manager rather than a potential liability that might bring restrictions on his mode of operation.

We recommend that the government utilize the sections in the act that allow for conservation agreements as a way of engaging the agriculture community in their recovery of species at risk. The decisions that agriculture producers make can be positively supported to create a landscape that produces a variety of ecosystem services necessary for the long-term sustainability of agriculture and the future health and prosperity of all Canadians. A conservation agreement would allow producers to lay out a management plan according to accepted agronomic practice. It would clarify what the producer would or would not do and it would support any stewardship efforts that would be clearly defined.

A permit system for agriculture would be cumbersome and unwieldy. We have some 327,000 agricultural producers, so I guess it would be very unwieldy to get a permit system that would permit activities for that number of producers.

The definition of “critical habitat” has been a problem in the implementation of the act. As managers on the land, I guess we have a hard time defining what is critical versus what is just habitat. If we're going to use terms in the act like “critical”, then we need a little better definition of how it gets used and implemented. For those of us on the land, habitat is habitat, and we're not quite sure what you would mean as far as critical versus just regular habitat is concerned.

The act does permit the minister to pay fair and reasonable compensation for extraordinary harm. We would like to see regulations and guidelines as to how that would be implemented.

We are very supportive of the government's work to move towards an ecosystem approach. Our whole livelihood depends on a very viable, functional ecosystem rather than on pinpointing specific species within that ecosystem. Rather than management for just one specific species, a very functional, dynamic, highly working ecosystem is going to be better able to withstand any challenges to it and any of the species that rely on it.

For cattle producers and other stakeholders in the protection and recovery of species at risk to do the right thing and make appropriate management decisions, good information is needed. Good information through appropriate channels is a critical component of a stewardship approach. The more we learn about how our ecosystems function, the more we realize there's a lot we don't know. So we're asking that more effort be put into studying and research so we have better information to make better decisions.

Essentially, rigid prescriptions in a very diverse system like agriculture don't work. We would like the legislation and the administrators of the legislation to empower the people on the ground to make decisions. They're the ones who are working with the land managers, and we think they're going to make better decisions than somebody who is here in Ottawa making a prescriptive one.

We would like to look at the system as a coaching system, as you develop the information and knowledge we need to make better decisions. We would like to see you putting coaches in the field rather than regulators. We think a carrot approach is better than a punitive approach. We have a lot of faith in our producers and in people in general. If you provide them with the right information and the right tools to make the proper decisions, they will make the proper decision-making on the land.

We have a little information in our notes about the Canadian cattle industry, but I think you're all aware of the importance of agriculture and its association with the environment and soil. We're all on the same team. Let's just treat ourselves as a team rather than adversaries.

Thank you.

9:10 a.m.


The Chair Conservative James Bezan

Thank you very much, Mr. Grant.

We're moving right along and we're going to go to CAPP. Mr. Masterson, you can kick us off.

9:10 a.m.

John Masterson Manager, Federal Regulatory Affairs, Canadian Association of Petroleum Producers

Good morning. On behalf of the Canadian Association of Petroleum Producers, I'd like to thank the standing committee for this opportunity to present.

The Canadian Association of Petroleum Producers represents 130 companies that explore for, develop, and produce more than 90% of Canada's oil and gas. CAPP also has 150 associate members that provide a wide range of services that support the upstream oil and gas sector. Together, members and associate members are an important part of a $120-billion-a-year national industry.

CAPP supports protection and recovery of species at risk and believes that SARA offers an appropriate framework to achieve this end. Five years of experience with SARA and several iterations of past bills have taught us that course corrections are needed to improve the effectiveness of this act. CAPP believes that amendments to SARA are needed to allow energy industry activities to be conducted in compliance with the act and in a sustainable manner. CAPP also believes there needs to be a concerted effort to finalize policy documents to implement SARA.

I'd like to turn the floor over to Peter Miller from Imperial Oil and then to Journey Paulus. Peter will talk to permitting and recovery planning, and Journey will talk to critical habitat and consultation matters.

9:15 a.m.

Peter Miller Legal Counsel, Imperial Oil Resources, Canadian Association of Petroleum Producers

Thank you.

Permitting and authorizations are an important feature for industry, and they are already provided for in the legislation. CAPP agrees with and supports the key issues that are raised—and you will hear about them today—by the Canadian Hydropower Association and the Canadian Electricity Association as well as the Forest Products Association of Canada, specifically in relation to conservation agreements about which we will not specifically speak, but they are important to us as well.

The five years of experience we've had now with the legislation convinces us that the existing permit and authorization system—the exemptions systems for incidental harm—are not working effectively. These exemptions and authorizations include permits and agreements under sections 73, 74, and 78, as well as the section 83 exemptions. Authorizations should be available on a multi-species and ecosystem basis and should be more accessible under existing approval processes. So when the legislation was first drafted, we were thinking entirely in terms of specific individual species, and I think we're finding we have to look at a broader spectrum of activity in an ecosystem.

We've done a considerable amount of work on trying to understand and to make the permitting process work. In fact, we started in our meetings with the department, and we set the B.C. Hydro example, which you may hear a bit about later, as the prototype of how to make this permitting process work. Unfortunately, three years later and after extensive discussion, in fact to the point where everybody agrees on a solution, when that is presented further up the line here in Ottawa, I understand the response we get back from the Department of Justice is that the act is not clear and does not provide the certainty that we're able to implement this permitting process the way everybody agrees to it. So we think there are some simple amendments required to enable the permitting process to work effectively.

This is very important to us and our industry for major projects like the Mackenzie gas project and for all oil sands projects. We have not implemented these yet, because we're at the approval stage, but we're truly looking for the first out of the gate, the B.C. Hydro example, to work for us. And as I say, in three years it has not been able to work. We think we understand why it's not working and we believe legislative changes will fix that. You will read about those in our detailed submission.

The timelines set out in SARA are unrealistic for larger, long-term industrial projects. Resource development projects often have a life span of twenty to fifty years, and a simple three- to five-year cycle both is inefficient and fails to provide the regulatory certainty that industry requires to make major capital investments. That short-term cycle, I think, initially had in mind specific scientific research type projects, and we've taken that concept and tried to apply that to a wildlife management legislation, which has become now a regulatory regime for all activity in the wilderness and simply doesn't apply to major resource development projects.

So again, a simple reconsideration of those timeframes would help that part of the act work effectively.

Finally, the stewardship activities you've heard about from agriculture are also very important to resource developers and should be the focus of our efforts under SARA legislation. In particular, conservation agreements must be available to us and be utilized to deal with creative solutions, but at the same time, then, they must offer an opportunity to ensure compliance with the legislation itself. We believe, as agriculture does, that species at risk will benefit more from voluntary measures from all directly affected parties than from an enforcement-based approach.

Speaking about recovery planning, again, five years of experience with the act has taught us that the original design of the act, the command and control, legalistic, enforcement-based approach, will not achieve the objectives of the act. The unreasonable and unattainable goals that were set in the legislation for the government to write recovery strategies for each and every species in a very short time period have been a major subject of frustration to all parties and to the government itself in these first five years.

Neither the science nor the resources existed to reasonably accomplish these goals in the timeframe that was set by the legislation. This reality has resulted in frustration on the part of all parties and in difficulties for industry in obtaining project approvals. I think when we got into seriously considering this challenge, we realized that a legislative model based on individual species is not workable. Though it is convenient, clear, and legally enforceable—and this is what I say is the very simplistic command and control model—and very efficient from a legal point of view, it is just not workable because it does not reflect the complexity of ecosystems and the interface among species. This requires, we believe, a minor amendment to change the focus of the legislation from individual species in recovery planning to an ecosystem approach and a multi-species approach.

Finally, many species are listed both provincially and federally, providing an opportunity for the efficient use of resources to specifically allow for the use of provincial recovery documents in the administration of SARA. What we have seen over the years is that the courts have interpreted the legislation to require discrete processes for each statutory decision-maker to exercise his or her responsibility. It will simply take an amendment to legislation to enable a more collaborative, efficient process.

I think the economic realities of the day that we've seen in the last year or so compel us to be much more creative than we have been in the past. We have to recognize that this legislation was drafted five years ago, but it really started 10 years ago, with a mindset of a completely different economic reality. What we are proposing today is that we be much more creative, much more efficient, and much more collaborative in the way we administer this legislation and this program.

Thank you.

9:20 a.m.

Journey Paulus Regulatory and Environmental Legal Counsel, EnCana Corporation, Canadian Association of Petroleum Producers

I'm going to speak briefly on critical habitat and consultation.

The identification of critical habitat has been a slow and very contentious process. Currently, it has resulted in our having 16 species with partially or completely identified critical habitat listed on the SARA registry. This inability to identify critical habitat has led to delays in the recovery of listed species, uncertainty for entities operating on the land base, and delays of projects.

There is no guidance provided on the process for defining critical habitat or the activities that destroy it. This has resulted in inconsistent approaches by the various recovery teams, Environment Canada, and DFO. The current approach to critical habitat does not result in the most cost-effective solutions to protect species at risk and allow for their survival or recovery. This is inconsistent with the preamble of SARA, which states: “community knowledge and interests, including socio-economic interests, should be considered in developing and implementing recovery measures”.

The definition of critical habitat is resulting in dramatically different interpretations today. In the extreme, the draft critical habitat for the Sprague's pipit, a prairie bird, included all areas with a 10% or better probability of being occupied by that bird in a specific part of its range. If this approach were taken throughout the range, it would result in the identification of most of the prairies. It is hard to understand how this is compatible with a view that this is essential to the recovery or survival of the species. A similar approach was taken for the boreal caribou. The socio-economic impact of these decisions is significant and was not considered in determining critical habitat.

SARA must be amended to clearly state that the purpose of identifying critical habitat is to ensure that human activities are managed in a way that is consistent with maintaining the functions of the habitat necessary to ensure the survival or recovery of the species. This means that human activity will not, in every case, be completely prohibited in an area. Critical habitat must only be the habitat that's actually essential to the survival or recovery of the species or ecosystem. Thus, in some cases critical habitat is not the way to effectively protect a species or an ecosystem.

CAPP recommends an amendment to SARA whereby habitat, as opposed to critical habitat, is identified at the recovery strategy stage, along with a specific plan to manage, monitor, and assess the habitat for the purposes of identifying critical habitat or other ways of effectively protecting the species at the action plan stage.

A number of CAPP's member companies that are directly affected parties have not been asked to participate in the recovery teams or to participate in any manner in the recovery planning efforts. As a result, recovery strategies have been developed over long periods of time, with many person-hours and dollars spent, with no input from directly affected companies. Companies are potential sources of valuable resources and scientific information on the species located in the lands where they operate. For example, recovery strategies for the tiny cryptanthe and Sprague's pipit were drafted with no meaningful consultation from our sector. The strategies indicated that oil and gas activities were a threat to these species. So there was an awareness that there were directly affected parties, and yet no consultation occurred.

CAPP recommends that SARA be amended to incorporate a definition of directly affected parties and that a regulation be created for one transparent, collaborative process to be followed at all stages of SARA.

In conclusion, a command and control approach is the opposite of what we need to have; we need a collaborative, cooperative approach. Minor changes to the act are all that are required to enable this approach. CAPP looks forward to working with the federal government to find ways of effectively amending and implementing SARA to meet all of our needs.

Thank you.

9:25 a.m.


The Chair Conservative James Bezan

Thank you very much.

We're moving right along. We'll go to Mr. Turk from the Canadian Electricity Association.

9:25 a.m.

Eli Turk Vice-President, Government Relations, Canadian Electricity Association

Thank you, Mr. Chairman.

Members of the standing committee, on behalf of the Canadian Electricity Association and its member companies, I'd like to thank you for the opportunity to appear before the committee this morning.

First, let me say that the CEA president and CEO, Pierre Guimond, would like to have been here, but unfortunately, a long-standing commitment prevented him from appearing today.

I'm Eli Turk, vice-president of the Canadian Electricity Association, and I'm joined today by Gary Birch from British Columbia Hydro. Ken Meade of Nova Scotia Power, who chairs CEA's SARA working group, is also here with us today. We're pleased to be here before this committee to provide the Canadian Electricity Association's perspective on the Species At Risk Act.

You've already received both a briefing note and a comprehensive legal analysis of SARA from CEA. Thus this presentation will focus on three priority issues for CEA members: first, the problem of immediate non-compliance of facilities; second, incidental effects and automatic prohibitions; and third, permit prerequisites, durations, and renewals.

You have already received both a briefing note and a comprehensive legal analysis on the Species at Risk Act from CEA.

So, this presentation will focus on three priority issues for CEA members: the problem of immediate non-compliance of facilities, the incidental effects and automatic prohibitions, and finally the permit prerequisites, durations and renewals.

The Canadian Electricity Association, founded in 1891, is the national voice of the Canadian electricity industry. CEA members generate, transmit, and distribute electricity to industrial, commercial, residential, and institutional customers across Canada on a daily basis. From vertically integrated electric utilities to power marketers, all are represented by this national industry association.

The Species at Risk Act implementation is a critical issue for the electricity industry, with cross-cutting implications for generation, transmission, and distribution functions of the electricity business. We support the fundamental architecture of SARA and are committed to protecting species that are endangered, extirpated, or threatened. In fact, the protection of biodiversity is enshrined in the CEA sustainable electricity program, which was officially launched by the CEA board of directors in February 2009.

A key commitment under the program requires members to manage environmental resources and ecosystems to support species recovery and prevent or minimize loss. However, as currently structured, SARA does not provide an expeditious way for facilities to achieve compliance with automatic prohibitions. It is vital that the electricity industry be given greater operational certainty and clarity under SARA, so that we can continue to provide Canadians with energy while continuing to protect species and comply with the act.

The philosophy of SARA is grounded firmly in a cooperative and voluntary approach to species protection, supplemented by compliance and enforcement measures. However, since the enactment of SARA, far more attention has been paid to the prohibitions and enforcement provisions than to the promotion of stewardship.

The SARA five-year review provides an opportunity for the federal government to make legislative amendments that would allow mechanisms for industry compliance with the Species at Risk Act.

With regard to automatic prohibitions, let me talk a bit about the problems facilities face with regard to immediate non-compliance. CEA members operate facilities constructed many years ago, which despite best efforts may have unavoidable incidental effects on species at risk. As currently interpreted, sections 32 and 33 of the act often present the electricity industry with an impossible choice. When a species is listed under the act, a facility with any incidental impact must either shut down or continue to operate in non-compliance with SARA. This uncertainty cannot continue. An amendment should be made to exempt facilities from automatic prohibitions, provided they have either applied for a SARA permit under section 73, engaged in recovery planning, or engaged in the development of a conservation agreement under section 11.

Let me talk a little about permitting for incidental effects. Frankly, the current permitting system under SARA for incidental effects is broken. While there have been many permits issued for scientific research and activities that benefit a species, very few have been issued under the incidental effects provision. A well-functioning permitting system must provide an expeditious way for facilities to comply with the act when, despite best practices, they cannot avoid all incidental effects on species.

Viewing the statute as a whole, it is clear that the type of incidental effect that Parliament intended to permit under section 73 is more than a trivial or de minimis effect, but not so serious as to jeopardize the survival or recovery of the species. CEA would encourage an amendment to the act that would allow for incidental effects that may violate the automatic prohibitions but would not be so serious as to jeopardize the survival or recovery of the species.

With regard to duration and renewal of permits, permits under section 73 are currently limited to three years and agreements to five years. This duration is not consistent with the long capital cycles in the electricity industry. Many facilities operate for 40 to 60 years, or in some cases even longer. The assignment of a three-year time limit for permits seems arbitrary and unrealistic, particularly if the lifespan of the affected species is much longer.

There is also no regime in place for dealing with permit renewals. Given that the maximum duration of a permit or agreement is three or five years respectively, the renewal process is absolutely critical for members of CEA with long-term facilities and operations.

CEA recommends that an amendment should be made to section 73, subsection (9), to allow for longer permits tied to facility operation permits and approvals granted by the regulators. The SARA permits may be reviewed and updated in respect of new risks to species and non-compliance with the terms and conditions of the permits.

Other concerns related to socio-related economic factors, definitional issues around critical habitat and residence, and harmonization with other federal and provincial legislation are covered in the CEA position paper, which I'd be pleased to discuss in the question period.

The Canadian Electricity Association appreciates the opportunity to appear before this committee to outline our key concerns on SARA. This is an extremely critical issue for the electricity industry, and we hope the committee will consider our recommendations so that the industry can better meet the objectives of SARA going forward.

Thank you. Merci.

9:35 a.m.


The Chair Conservative James Bezan

Thank you, Mr. Turk.

We'll move on to the final presenter, the Canadian Hydropower Association. Mr. Wojczynski, would you bring those comments?

9:35 a.m.

Ed Wojczynski Vice-Chair, Chair of the Species at Risk Act Working Group, Canadian Hydropower Association

Thank you, Mr. Chair.

Before I start, I wish to express appreciation on behalf of CHA and all its members for the privilege of participating in this important forum. Protection of species, and particularly the SARA, is important to the environment, to society, and to our industry, and we expect a review will assist in improving this protection.

In addition to Pierre Lundahl and me, in the audience we also have Jacob Irving, the new president of CHA, who just took over last week from Pierre Fortin, our esteemed former president, whom some of you will know.

And we have Janice Walton, of Blake, Cassels & Graydon in Vancouver, who helped us prepare our submission; and Nadine Adm of Hydro-Québec, who was one of the participants in our SARA working group.

As you already have our fairly extensive submission, which we provided about a month ago, and some more recent, briefer notes, I'm not going to waste your time going through all the suggestions in there. I'm going to give a brief summary of the one main issue we were focusing on, which we see as being critical to be dealt with in the short term. And I will provide a little bit of emphasis that's not contained in our submission itself.

But before I do that, I want to say that a lot of people don't have good background on the hydro power situation in Canada. Hydro power today produces over 60% of the electricity in Canada. And contrary to some people's understanding, there is enough potential to develop additional hydro right across the country to triple the amount of hydro power we have. So it's not a resource that has been exhausted. Some of that will not be able to be developed, for environmental or economic reasons, but a very large portion of it could be.

As evidence of that, over $50 billion in planned capital investments are actively being planned at this time. We all think of the oil sands as being a huge area for investment, while here we have $50 billion in renewable hydro.

CHA and its members support the objectives, the principles, and the fundamental structure of SARA. However, there are some key gaps in the current drafting that, first, have contributed to the implementation of SARA being slower than anybody wants and, second, in our case, have created some serious difficulties for hydro power that we believe and understand were not the intention of the original drafters.

Our recommendations would assist in faster implementation of SARA, and it would provide more effective protection for species and a resolution of the most severe difficulties for the hydro power industry. We recognize, to be realistic, that there is a low likelihood of major changes to the SARA legislation, and in our understanding, any major changes would have to come in the future. But we feel some relatively small wording changes can be done that are critical. We are making two priority suggestions that would be relatively easy to draft and are short.

The most important issue for CHA--and you've been hearing that from the other industries as well today--is the authorization of activities at existing and new hydro facilities. For the others it's not hydro, obviously. Despite all the hydro power industry's best efforts, it is not physically possible to guarantee that no incidental harm to aquatic species will ever occur. For this reason, there is a need for a mechanism to authorize the hydro power facility to operate even if incidental impacts occur. However, of course this would have to be under strict conditions designed to avoid impacts or mitigate impacts and assist in species protection.

So we could have a situation whereby an effort at a project or a system is helping the species overall to do better, but with the legislation that's set up now, the concern would be what if you kill one individual member in your facility, rather than the focus being what if you saved or created 100 or 1,000 more members somewhere else. So we think the emphasis in the implementation needs to be different, and our suggestions will help with that.

Currently SARA allows for permits or agreements authorizing incidental harm but as you've already heard, these are limited to only three or five years' duration. This is simply not viable for a hydro power facility that can take up to 10 years to plan and build and is anticipated to be operational for up to 100 years. Without adequate provision for authorization of activities, many hydro power facilities may not be able to operate in compliance with SARA once it is fully implemented. And Eli just explained that. Without the ability to have any degree of certainty over long-term permitting under SARA, some proposed new hydro power facilities may not be able to secure financing because of the uncertainty in the long term, and thus can obviously not proceed.

There are two areas in SARA that the CHA believes can be revised to deal with this problem. The first is the permitting provisions themselves. This is what CEA just discussed, so we won't repeat any of that. We support what they were saying.

Second is provisions in relation to conservation agreements as a stewardship tool to protect species in their habitat and to aid in compliance with SARA. What we're looking for is not a tool to avoid compliance with SARA; we're looking for a tool that would be practical for industry to work with government to make sure we can meet the requirements of species protection. So we're looking for a compliance tool.

SARA allows the minister currently to enter into a section 11 conservation agreement with an organization or person to benefit a species at risk or enhance survival in the wild. However, these conservation agreements do not provide any protection or exemptions from SARA's prohibitions and incidental harm, even though an entity is acting in full compliance with the conservation agreement.

Conservation agreements would allow for management of species in critical habitat, tailored to the needs of the species, the activities of the agreement holders, local communities, and government. The CHA specifically recommends the following: (a) allowing conservation agreements to be authorized for activities specified in the agreement, and that would be in section 11; an d(b) providing exemptions from SARA's prohibitions for entities that enter and comply with conservation agreements. That's a couple of small additions to section 83.

Of course, these conservation agreements would need to be enforceable, and there needs to be assurance of accountability. The agreements could be done in parallel with preparation of recovery strategies, or even before them, and then be reviewed upon completion of the strategy if required. This could assist in speeding up such recovery strategies rather than slowing them down.

These suggestions, as well as the ones contained in our written submission, would enhance application of SARA and protection of species for four reasons. There would be clear means for government and industry staff and other stakeholders to implement SARA. There would be reduced opposition to listing of certain species due to concern over risk of extreme socio-economic impact. So today, with the way SARA is drafted with those gaps, there will be certain species to which there would be a lot of opposition to their being listed, because of the major socio-economic ramifications. But if these gaps were addressed, there wouldn't be that same fear over what will happen if they get listed.

Third, government, industry, and other stakeholders can focus on protection of overall populations of species at risk, rather than a few individuals who might be incidentally harmed.

The fourth is that the current--and you've heard this from CAPP--conservation agreements are a good way to allow an ecological approach to deal with multiple species rather than one species at a time.

Moving forward, CHA has taken initial steps, with others, to work together with other industries to develop a multi-stakeholder proposal. The CHA anticipates that by the fall of 2009, it and the others will have developed a more detailed proposal as to how conservation agreements and permitting could be used as a compliance tool and what changes to SARA are needed to make that happen.

The CHA supports wildlife and ecological conservation and submits recommendations that we believe will enhance, not detract, from SARA's ability to achieve real results in species protection.

Thank you.

9:45 a.m.


The Chair Conservative James Bezan

Thank you very much.

We'll go to our first round of questioning. Please, Mr. Trudeau, lead us off for seven minutes.

9:45 a.m.


Justin Trudeau Liberal Papineau, QC

Thank you, Chair.

Through you, I'd first of all ask Mr. Miller a question.

SARA was set up specifically somewhat differently from other legislation with a reverse onus principle. The priority was first and foremost to protect wildlife, protect species at risk, protect habitat, and that would be the default position of this legislation. Does CAPP agree with that principle?

9:45 a.m.

Legal Counsel, Imperial Oil Resources, Canadian Association of Petroleum Producers

Peter Miller

I think the principle applies to hunting-type legislation, to offences where people go out and intentionally harm. Definitely, that approach is applicable there. But when that approach is taken to a regulatory setting, where we're talking about strict liability offences, things that could happen beyond your control--and then you start arguing due diligence and how much you should have done to prevent it--I think we have to look very carefully at that one extreme objective of protecting every individual of every species in every situation.

9:45 a.m.


Justin Trudeau Liberal Papineau, QC

I think SARA, even as the name implies, is not every individual of every species; it's species at risk. The philosophy and the thinking behind SARA, as I understand it, is that when species are at risk we need to default to trying to do everything we can to protect them and then figure out the consequences on a socio-economic level, along with that and according to that, but always defaulting to the position that once a species is extirpated or extinct, we can't turn that back.

So is the principle of defaulting to protection, in principle, one that CAPP supports?

9:45 a.m.

Legal Counsel, Imperial Oil Resources, Canadian Association of Petroleum Producers

Peter Miller

Yes. We don't disagree on that point, absolutely.

Again, the problem is that when the law is written as a command and control and enforcement-based approach where an offence is created for each individual impairment, that's where the problem arises. What you've heard from industry here is that we want to accomplish that goal of protection of species in a reasonable way but not be caught in the trap of enforcement and punitive actions for each and every individual event.

But we're in complete agreement on the objective of the act, and hopefully the broader approaches to stewardship are what will accomplish that.

9:45 a.m.


Justin Trudeau Liberal Papineau, QC

Well, let's talk about that.

You wish to move away from identifying specific species and look at a more ecosystem-based approach, a more multi-species approach. So would we then be looking at specific ecosystems at risk and say, for example, the boreal forest is the ecosystem at risk here and we need to absolutely protect that and not worry about individual species so much, simply blanket protect the entire boreal forest or entire segments and examples of that? Is that your multi-species approach?

9:45 a.m.

Legal Counsel, Imperial Oil Resources, Canadian Association of Petroleum Producers

Peter Miller

I think we will always do both, but maybe I'll ask Journey. She has worked on this one.

9:45 a.m.

Regulatory and Environmental Legal Counsel, EnCana Corporation, Canadian Association of Petroleum Producers

Journey Paulus

I think it's a combination of those, really, that you're looking at. We're looking at recovery planning. You'd still list a species. But then in terms of recovery planning, we have 425 species currently listed, and a small number of those actually have recovery plans in place. We're trying to find a way to work to efficiently protect species. Until you get these recovery plans in place, lots of the recovery planning doesn't occur, and the ability to find ways to manage human activities doesn't occur either. So we're looking for a solution to the recovery planning process.

It has been recommended by your own reports. The Office of the Auditor General, in 2008, and the Stratos report, in 2006, all came to the same conclusion, that we have to move towards recovery planning on an ecosystem basis in order to address the huge backlog, and to address multiple species in the same area could have conflicting requirements. So you have to balance those off also.