Environment Committee on March 10th, 2009

[Cynthia Wright]

As I said, I don't think it's a question of certainty. We never have certainty in science. In the environmental field we're quite used to operating with a degree of uncertainty. But if you don't know if that species even nests there.... The piping plover example was very instructive. There was habitat that looked like perfectly good habitat, but we found they never used it.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

If I can interject here again, my favourite topic—being from Alberta—is the woodland caribou. It's well known where the last of the habitat is. It's very small because of the tar sands, because of conventional oil and gas, because of coal mining, because of other developments in the eastern slopes and the northern area of Alberta. It was two years overdue, and then it's sitting in the minister's office now for seven months. Can we anticipate that the minister in fact will actually issue that plan within two months?

If we think there are further delays and if we are not waiting for scientific certainty, I have two questions. First, is it because the province does not want a habitat to be designated? Second, is there a problem in SARA that, unlike CEPA, there's no provision for an interim or emergency order? It may well be there, and you can correct me if I'm wrong—I'd be delighted if it is. If there is not such a power, would it be beneficial to add that to the act, given the fact that the very purpose and intent of the act is to take precautionary action to protect the species and its habitat before it's extirpated?

[The Chair, Conservative, James Bezan]

Based upon some of the questions that were raised by Ms. Duncan, I'll just say this. As public servants, as you're aware, we do expect you to answer all questions put before the committee, but we know you have to balance your appearance here with the role you play as public servants in providing confidential advice to your ministers. So we will respect that you can't answer all the questions that are put before you as they relate to your relationship with the minister.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Perhaps, then, they need to clarify which ones they can't answer.

[Cynthia Wright]

Well, I think the Minister of Environment has made it clear that he intends to release the report. There are emergency powers under the act. I'm forgetting precisely where they are in the act, but I do know that one is in the section in the 80s, and there's one earlier on. I think it's the one on emergency habitat. So there are two.

There is also an emergency listing, and there are emergency powers for taking action to protect a species and to protect its habitat.

So I think all the emergency powers are in the act, the equivalent of what the member might be thinking of under the Species at Risk Act.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Have you ever exercised those powers?

[Cynthia Wright]

We have made it clear to the province what those powers are, and we have had cooperation so far from the provinces. So we have not used those powers yet.

I just want to come back to the habitat issue, because there is a distinction in the act between critical habitat and habitat. That's the part, I think, that's challenging. Most of the time we know the habitat, or possible habitat. Whether that habitat is critical for the survival and recovery of the species is where the challenge lies.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Would it not be possible to in fact designate critical habitat, then await further science, and then adjust the boundaries of that critical habitat?

[Cynthia Wright]

That's an issue the committee might want to look at. There are implications of designating land that may not, in the end, actually be used by species, because there are prohibitions that apply upon designation of that land.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

But you could amend it later? In other words, the purpose of the act is to act in a precautionary manner, in advance of the species being extirpated.

Is it not more important to make mistakes in setting aside the wrong land, or a bit too much or not enough, rather than delaying and then having the species extirpated, or its numbers severely drawn down?

[Cynthia Wright]

Our strategy to date has been to actually look at how much habitat is protected. Whether or not it is designated under the Species at Risk Act has been an area where we have not necessarily focused. So if I use the spotted owl as an example, that was a species where we pushed for protection and there was protection at the provincial level. We did designate it, based on what we knew and understood at the time and could scientifically defend.

[The Chair, Conservative, James Bezan]

Thank you. Your time has expired.

Mr. Warawa, a final question.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

Has SARA been fully implemented?

[Cynthia Wright]

If by that you mean have we been through an entire cycle of assessment, recovery planning, action planning, monitoring and evaluation, yes, we have, for the Banff Springs snail, a species that has gone through the entire cycle. There will be others coming through the cycle in the coming year, but that was the first one through.

[Mark Warawa, Conservative, Langley, BC]

My next question focuses on socio-economic considerations. We've heard from the NDP that they would like to cripple the economy, shut down the oil sands, make all of Canada a critical habitat—

[Linda Duncan, NDP, Edmonton Strathcona, AB]

On a point of order, the NDP has never said that. The Conservatives have said that.

[Mark Warawa, Conservative, Langley, BC]

So my question is, among the provinces, industry, and environmental groups, who is saying to you that socio-economic considerations should be part of SARA, and who is taking the position that they should not be?

As we look to science to determine what is critical habitat, you've shared with us that information is limited. You did make a comment about an hour ago about existing infrastructure. If a farmer's field or a hydroelectric project already in existence is determined to be critical habitat for a species, what are the consequences for that infrastructure or farmer's field?

[Cynthia Wright]

If land is designated as critical habitat, the act prohibits the destruction of that critical habitat. That's why we have to be precise about what is critical about that habitat. What can you not do? If you use the woodland caribou as an example, does it mean you cannot cut a tree in the boreal forest? That's where we need the science to be clear on what constitutes destruction, because you cannot destroy unless the minister has an action plan and says that the activity would be consistent with the action plan. So there is a permitting process, but it has a very high threshold. Essentially, it's looking at that critical habitat being protected because it is essential for the survival and recovery of the species.

Where the act allows critical habitat explicitly to be used in the act is when you're identifying the measures to be taken in the action plan. So you will hear criticisms that we are considering socio-economics on the decision of whether or not to list a species when the act itself is silent on that. We are, as officials, advising the minister under the authority of the cabinet directive on regulation-making, and that cabinet directive does require the government to consider at least some degree of socio-economic implications upon listing. Because it's an order, it falls under that directive. And it is important to recognize that upon listing, criminal-law powers come into effect that prohibit the destruction of the species, the taking of the species, the killing of the species. So in order for the government to make a balanced decision, the cabinet directive applies so that those criminal-law powers come into it in an appropriate manner.

[Mark Warawa, Conservative, Langley, BC]

On my specific question, using the examples you used, a farmer's field or a hydroelectric plant, if an area is deemed to be critical habitat and there are practices existing on that land, what are the impacts on that infrastructure?

[Cynthia Wright]

The act has a two-stage process for identifying and protecting critical habitat. So if the government put in an order on private land to protect that critical habitat, the farmer would not be able to plow that field, unless for some reason the minister could be certain it would not have an impact on the recovery of the species. In this case, we deemed that it would have had an impact on the recovery of the species.

[Mark Warawa, Conservative, Langley, BC]

Is there compensation to the farmer?

[Cynthia Wright]

There is compensation allowed under the act where there are extraordinary losses. So there has to be a demonstration of what the extraordinary losses would be.

[Mark Warawa, Conservative, Langley, BC]

Is that defined?

[Cynthia Wright]

That is not defined. The minister has to make those judgments in the context of the regulations. Given our other priorities for working under the act, we have not yet developed proposed regulations under that authority. It will be an area where I think there will be more attention in the coming year.

[The Chair, Conservative, James Bezan]

Thank you. Your time has expired, and the time for our meeting has expired as well.

I want to thank all the witnesses for appearing.

I want to remind committee members to please forward to the clerk by the end of today your list of witnesses for our study on SARA.

With that, I'll entertain a motion to adjourn.