Environment Committee on April 27th, 2010

[Rachel Plotkin]

Thank you for your question.

The way that I understand SARA to work is actually that the prohibitions apply primarily to federal jurisdiction, and that the only way the federal government would ever step on a province's toes is if a province didn't have its own measures to effectively protect the habitat of that species and the species itself from harm or harassment.

As long as a province comes up with its own legislation to effectively protect a species and its habitat, and as long as it enforces that legislation, then there shouldn't be any instance in which the federal government ever actually does extend its jurisdiction into a province.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Thank you.

Mr. Ferguson, do you believe the government is protecting the caribou's critical habitat or do you feel instead that it is protecting the tar sands development which is adversely affecting this species? What is your take on the relationship between the tar sands and the caribou?

[Dr. Keith Ferguson]

Maybe Susan Pinkus, our staff scientist, could speak to that.

[Susan Pinkus, Staff Scientist, Ecojustice Canada]

Thank you, Keith.

What I would say about the protection of critical habitat for caribou, first and foremost, is that the federal government has delayed beyond the legal deadline in identifying its critical habitat, and so we're watching this species decline precipitously in some areas in the absence of identification of critical habitat.

Certainly development by industry, including potentially oil sands development, is harming the species. We need critical habitat identification that's clear so that we can look at what sort of disturbance that habitat can tolerate and take the next step to actually manage the species for its survival rather than what I think we are risking now, which is presiding over its continued decline.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

In you opinion, is the act clear enough? Does implementing the act's provisions present a problem?

[Susan Pinkus]

I think it's the application in this case. The act allows us to identify critical habitat for the caribou. The act requires, or at least allows, the federal government to step in if provincial governments with caribou critical habitat under their jurisdiction cannot provide effective legal protection that prevents destruction of that habitat.

We need to implement the act and see if it's going to work. There is a good chance it would if we actually bit the bullet and did it.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

In your opinion, has the caribou rehabilitation program had some positive results? Since the legislation was enacted, have you seen any improvements in terms of protecting the caribou?

[Susan Pinkus]

I think there has been progress. We have an excellent scientific report identifying the critical habitat of the boreal caribou. Unfortunately, that report did not turn into a final recovery strategy and a legal identification of critical habitat. Further science is being developed all the time, so there's definitely been progress. I don't know how much progress there's actually been on protecting the caribou's habitat and restoring the damaged populations and preventing further harm to the populations that are currently stable.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Merci, monsieur le président.

[The Chair, Conservative, James Bezan]

Merci beaucoup.

We'll go to Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Thank you to all of you who are here, and thank you to those in beautiful B.C.--you rats; it's snowing here.

[Dr. Keith Ferguson]

It's raining here.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Those were really good briefs and really thorough presentations. They were greatly appreciated.

I particularly appreciated the effort you took to actually make recommendations on legal amendments. I think they'll be really useful to our committee. They certainly will be to me.

There are so many issues and there is so much we need to discuss. I'm probably going to be able to ask you only some of my questions. But I really appreciate the effort you've made to brief us.

I would like to start off with this issue of the safety net. It seems to be the running theme, which frankly has been with us for quite some years, not just under the current government. It's this issue of putting friendly federal-provincial relations ahead of anything to do with environmental protection.

I think you've already testified to the effect that the federal Minister of the Environment's power has never actually been exercised. As an Albertan, I have to say that I'm happy to see all the testimony about the woodland caribou. I can't even begin to count the number of presentations made to me, even before I was elected, on how desperate people are for action by the federal government on this because of the failure of the Alberta government. As my colleague has pointed out, the famous CEMA committee actually had a recommendation for action in the tar sands area, and the provincial government refused to act. I guess that raises this very question: at what juncture will the federal minister intervene?

Keith, I noticed that right away you raised the spectre of equivalency, which was my immediate reaction. Of course, that's the term used in CEPA. I'm wondering if any of you would like to speak to the issue of whether you think, perhaps, the provisions in law may be inadequate. Should we perhaps be taking the approach that's taken in CEPA? That is, the federal government will intervene unless the provincial jurisdiction or the territorial jurisdiction has what's considered to be equivalent legislation and an equivalent enforcement compliance strategy.

Now, it's been pointed out to me, in my reading, that the federal government doesn't have, I don't think, an enforcement compliance strategy on this act yet, and shame on them if they don't. I wish I could have raised that with the government.

What do you think? Keith raised this; or Rachel, or anyone else, might want to address this. It seems to be an issue that a lot of the witnesses have raised. I would welcome your elaborating a bit on how we address the problem of this provision. We have a species listed, but nothing is happening.

[Rachel Plotkin]

I'll let you take a stab at it, Keith.

[Dr. Keith Ferguson]

Thanks, Rachel.

I'd be happy to respond.

We do believe that federal leadership is critical for species at risk, but we also agree that a cooperative approach between the federal government and the provinces makes sense so long as the provinces are doing what they committed to under the national accord. That's the basis of the idea of the safety net: leave it to the provinces to begin with.

The provinces did commit back in the late 1990s to put forward new laws to protect species effectively. And some have. Unfortunately, others have not. Here in the west, in particular, we have very large holes in some of the provincial laws on species at risk. So we believe that the safety net does need to be given more teeth, yes. It must be a credible process under SARA such that the federal government really will step in if the province is not living up to its prior commitments.

In our brief last summer--that's our July 2009 brief--we laid out in great detail how we think that “safety net with more teeth” approach could work. It would basically consist of a number of criteria the federal government would use to evaluate provincial laws. It would involve a gap analysis to look at provincial laws. And then it would involve some cooperation. Only at the end of that, if the province still refused to put in sufficient protections, would the federal government have to step in with a safety net.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Do you think there should be a timeline imposed on that?

[Dr. Keith Ferguson]

We do indeed, and we recommended timelines in our brief. We recommended 180 days for the initial gap analysis, and a further 180 days for the province to fix any holes. At the end of one year, the safety net would have to be used if the province was not effectively protecting.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks, Mr. Ferguson.

I appreciate your mentioning the national accord, which I've taken a look at. And...well, that should be expediting action.

The second key issue that I've heard a lot of witnesses raise is the conservation agreements. We've heard Mr. Ewins say he is very enthusiastic about that. I've heard from other witnesses that they like the idea but they have some reservations.

I notice you made a number of recommendations on that. Some of the concern I've heard is that it shouldn't replace the terms of a binding permit.

I'm wondering if anybody would like to elaborate more on the conservation agreements, because we've certainly heard from industry, who are keen. I know you're trying to work towards an agreement, but it appears that you may not achieve an agreement before we finish our hearing from testimony. So I'm wondering also if you think it would be useful if we need some kind of recommendation for the department to support working towards an agreement to expedite the use of these instruments.

[Dr. Peter Ewins]

Thank you. That's a very “applied” question, which is WWF's most important issue here.

I think the potential is there. We're just not yet at the point where industry and conservation groups and others can actually go to government with a finalized game plan, which is why we're recommending that it be dealt with by a global review exercise promptly. There are certainly decades of experience in other situations highly similar to this one here. It's quite remarkable to a number of us, including industry colleagues on SARAC, who agree that this implementation tool has not been quickly brought forward onto the conveyor belt, and we're not seeing these agreements showcased in Canada.

So it's not rocket science. There is nothing new to invent here. It just needs to be done in a prescriptive way, which is fair and effective, that actually brings on positive cooperation and stewardship and participation in this, without having to rely as much on the sticks and the truncheons, with all the safety nets that need to be there too. Industry wants the security; biodiversity wants the security; and environmental groups want the security. It's not difficult to do. It just needs to be brought forward and Canadianized.

[The Chair, Conservative, James Bezan]

Thank you, Ms. Duncan. Time has expired.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Oh, no!

I'll take Mr. Bigras' time.

[Voices]

Oh, oh!

[The Chair, Conservative, James Bezan]

I think Monsieur Ouellet did that.

Mr. Calkins, you're going to wrap up the seven-minute round.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Well, thank you, Mr. Chair.

Thank you, friends, for coming and bringing some very important information before the committee.

I just want to bring to the attention of members here that today, when I was looking at the species at risk website of Environment Canada, I saw actually a summary of the Scientific Review for the Identification of Critical Habitat for Woodland Caribou, Boreal Population, in Canada and the Working Together to Recover Boreal Caribou document, which are now published on the species at risk website. So it looks like Environment Canada is moving in that direction, and I'm sure that your organizations will be responding to the call for input on this very important issue.

I remember when I was a national park warden at Jasper. I was a back country warden at Willow Creek district north boundary. I remember riding into the Willmore Wilderness Park one day, and as I came over the crest of the hill I saw three woodland caribou down in a valley. I sat there for an hour and watched, and it was one of the better days I had as a national park warden. I remember being somewhat frustrated at the fact that this population.... It's been in decline. There is no secret about that.

This specific question is for you, Éric. As a Parks employee, it was very difficult for me at the time to bring this issue up. But if you take a look at particularly the range of the boreal caribou, we know that basically for the Howse Pass, the population there is extirpated. We know that in Banff the population is extirpated. We have recommendations here--this is a legislative review of SARA--yet Parks Canada, I believe, has a policy of no predator control; at least it did at the time when I was there.

If you take a look at some of the critical factors affecting boreal caribou, it would seem to me that some of these things within Environment Canada itself need to be addressed. I know that predator control is a sensitive issue, because obviously it irks...some of those deeper feelings. But when you have such tight ranges, such small areas as we do in our national parks, and such critical habitat, without effective management within those things....

I understand the philosophy and the ideal--I truly do--of letting natural systems take their course. I'm surprised there isn't a recommendation coming, particularly from Parks and Wilderness, along this line.

Would you care to comment on that?

[Éric Hébert-Daly]

Sure.

There's no question that the prey-predator relationships are a factor, but I think one of the key things, as I mentioned earlier, is that we're creating in some cases, particularly near protected areas already.... As you rightfully pointed out, the range of woodland caribou is quite large, so even a national park in a lot of cases can't contain the range of a particular woodland caribou or a particular herd.

What we have to do is think about what kinds of impacts we're actually having on the habitat of those caribou that are actually influencing the prey-predator relationship. That is where the creation of roads and where the creation of access ways, in fact, has become one of the bigger pieces of the puzzle.

Predator control has its place in certain circumstances, but the bigger factor, when we look at habitat, is more often how that habitat is fractured and how that creates an opportunity for predators more than it does protect the prey.