Environment Committee on March 10th, 2009

[Cynthia Wright]

I'll raise a few that I hear regularly from stakeholders, particularly from the Species at Risk Advisory Committee and the National Aboriginal Council on Species at Risk, starting with the latter. One of the challenges you'll hear, I'm sure, concerns consultation with aboriginal peoples. Aboriginal people have rights, and many of them have land management responsibilities, and therefore species are of primary concern to them, for reasons including subsistence harvesting that my colleague, Pardeep Ahluwalia, mentioned.

There is a requirement to consult. I'm sure we could never do enough consultation. That is something we're trying to improve. We now have a memorandum of understanding with the Nunavut government to respect their land management claim responsibilities.

Consultation is a challenge with aboriginals, particularly, as you know, because they're dispersed across Canada in small communities. We're mounting our largest consultation ever on the polar bear to get out to small communities, because we know it's a species that's important to the Inuit people.

The second aspect that aboriginals will raise is subsistence harvesting and whether or not the Species at Risk Act interferes with it.

From a broader perspective, there is a large number of species—I mentioned that there's been almost a doubling of species added to the list since proclamation—for all of which we are required to go through the steps of recovery strategy and plan our management plans. Some are simple, but many of them are complex, and they all require a high degree of attention.

Critical habitat identification is a challenging one. It's challenging from a scientific perspective. The act requires that we do it in the recovery strategy as best we can. Often we're struggling, asking how much we do in the recovery strategy. Do we get the recovery strategy out and move to action plans, so that we at least get information out there in the public? That's a challenge.

A challenge you'll probably hear about from industry concerns the act's permitting, and the fact that the act presumes that government will want to stop any activity that could have any impact on species at risk. Some of that activity has been in place—hydro dams, etc.—so there are industry concerns about clarity as to whether or not the act would allow long-term activity, particularly activity that's already in place before species are identified.

Those are some of the challenges that we hear regularly.

[Mark Warawa, Conservative, Langley, BC]

The timeframe you are given within SARA to deal with these numerous issues.... Let's talk about aboriginal issues. As a species is being identified by COSEWIC, is there adequate time within SARA to deal with the issues of science and with traditional needs? I'm thinking also of the socio-economic issues that may be raised, with industry or first nations. You have a very prescriptive formula within SARA. Do the timeframes need to be looked at?

[Cynthia Wright]

The nine-month clock for listing—that's the time from when the minister provides the COSEWIC assessment to the Governor in Council—starts a nine-month clock to finish the listing process, which requires consultation. We have found that where consultation involves extensive consultation with aboriginals, particularly where there are land claims and where there are economic issues—and my colleague from Fisheries and Oceans could probably speak to that more—this nine-month clock is extremely difficult. It's very difficult to get across the north, for example, for consultation with all the communities that could be implicated by a decision on polar bear listing. Nine months is a very difficult challenge.

In fact, the agreement we negotiated with Nunavut to respect their land claims actually requires more than nine months.

That's in the listing phase. The other phase, critical habitat, is, as I said, a challenge in the early stages of the recovery planning.

[The Chair, Conservative, James Bezan]

We'll start off our five-minute round.

Mr. Scarpaleggia.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you very much, Chair.

Welcome to the committee.

I'd like to pursue the issue of critical habitat protection. Is it required of the department to make recommendations about critical habitat protection in recovery plans, or in assessments that are supposed to be dealing with critical habitat? Could you clarify that for me, please?

[Cynthia Wright]

It's not in the assessment phase. So COSEWIC does not concern itself with critical habitat. And oftentimes, COSEWIC has very limited information about where the species are and what the requirements are for recovery.

It's in the recovery planning phase, which under the act is a two-step process. The first step is a recovery strategy, which has a high-level goal—what population do you want to reattain?—and it says that you have to identify critical habitat to the extent possible. In the action planning phase, the second part, you are getting more precise implementation measures to protect. That's when you're supposed to finish the identification of critical habitat.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Now, my understanding is that the court cases you were alluding to before, and that Ms. Duncan was alluding to, involved issues of critical habitat and recovery plans.

[Cynthia Wright]

Most of them do, yes.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Especially since it's pretty clearly laid out in the legislation, I imagine, why would we submit to recovery plans that could be so easily and repeatedly challenged in court? You say that as you go through these successive court challenges, you learn. But what is there to learn, really? It seems to me that it was a fairly well laid out and clear requirement from the get-go. So what's there to learn? In what respect are these recovery plans lacking with respect to habitat?

[Cynthia Wright]

I can probably explain best, Mr. Chair, with the short example of the piping plover. As I said, it breeds on the ground, and particularly in agricultural or beach recreation areas. We don't know why it picks an area, and it doesn't pick the same area year after year. So identification of critical habitat would require us to stop recreational activities and agricultural activities in the area identified as critical habitat.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

So that's where the socio-economics comes in, I guess.

[Cynthia Wright]

That's where the importance of being sure of what you're doing comes in. You have to be able to identify it such that a farmer knows he can plough or cannot plough that area, because critical habitat has a prohibition against activities happening.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

That's a socio-economic issue, I would think. If you're talking to farmers about ploughing, it's all about economics, is it not?

[Cynthia Wright]

What I'm trying to explain is that it's a consequence of being sure, scientifically, of what you're identifying. Scientifically, we want to be sure of whether the piping plover are highly likely to nest in this area.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Right. I've got it. But what about the other four challenges? What species did they involve? Was it the same problem? Did you have a species that was roaming about and so on?

[Pardeep Ahluwalia]

If I may, Mr. Chairman, one of the more recent species that's been the subject of court challenges is the resident population of killer whales off British Columbia. That's a different level of challenge in the sense of dealing with critical habitat. We're dealing with large marine mammals that occupy a very large space. The resident killer whales are predominantly resident in B.C. waters, hence the name, but they don't spend all their time in B.C. waters. So we're not always quite sure of what the habitat is, let alone the critical habitat.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

What do the courts say in response to these challenges? Do they agree with you that there are scientific challenges? Or do they say that it's not really a scientific challenge and that maybe you're not working closely enough with the province on this? Or maybe the province is being uncooperative. I mean, what kinds of conclusions are the courts coming up with?

[Cynthia Wright]

If I can, Mr. Chair, many of these actually haven't gone all the way through the court process. For the piping plover, the mistake Environment Canada made was not being clear about what we were up to. We spoke to the NGOs that raised the challenge afterwards, and we made a mistake. We should have said that we were doing further work to identify critical habitat and that we would have that done within a set period of time. We are now trying to make that our practice so that we're more transparent.

[The Chair, Conservative, James Bezan]

Time has expired, unfortunately.

Mr. Calkins, the floor is yours.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

I certainly appreciate the conversations happening today.

First, just quickly, can you enlighten me as to how something gets on schedule 2 or 3? I understand that COSEWIC is responsible for taking it from schedule 2 or 3 and putting it on schedule 1. Can you just tell this committee how a species gets listed on schedules 2 and 3?

[Cynthia Wright]

The good news is that effectively, schedules 2 and 3 are empty now. COSEWIC has existed for a long time, and they were operating under a certain kind of assessment procedure. They reformulated their procedures to harmonize with the International Union for Conservation. They had species that had been assessed under an old protocol, but they had to be reassessed under the new protocol. Those have all been dealt with and are into the listing process or are listed under schedule 1.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

In the deemed classification clause in the bill, how many of the species moved to schedule 1 from schedules 2 and 3 because of insufficient time? Have a lot been moved into that?

[Cynthia Wright]

No, they were all done on time, with scientific evidence.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

How does this act work in conjunction with the Convention on International Trade in Endangered Species? Is the listing that we put out in schedule 1, the endangered species there, used by the CITES?

[Cynthia Wright]

That can be used as Canada's input and presentation to the CITES, but the CITES has their classification, and that's what COSEWIC was trying to harmonize with.