Environment Committee on May 4th, 2010

[The Chair, Conservative, James Bezan]

We're running a little behind schedule, so we'll get this meeting called to order.

We're going to continue with our studies on the Species at Risk Act. To discuss the Species at Risk Act today, we have a number of witnesses here who are bringing with them their expertise and educational backgrounds.

I'd like to welcome to the table Dr. Scott Findlay, associate professor at the University of Ottawa.

You didn't have to come that far, but I'm glad that you did take time out of your schedule to join us.

From the Vancouver Aquarium Marine Science Centre, we have with us Lance Barrett-Lennard, who is the head of the cetacean research program.

Welcome.

As an individual, we also have with us Dr. Michael Pearson, registered professional biologist at Pearson Ecological.

From the Scientific Committee on Species at Risk, SCOSAR, we have Dr. Arne Mooers, associate professor of biological sciences at Simon Fraser University.

I want to welcome all four of you and thank you for taking time out of your schedules to give us your interpretation of the act and tell us where we need to be going as we go through this review.

With that, Dr. Findlay, could you kick us off with your opening comments?

[Dr. C. Scott Findlay, Associate Professor, University of Ottawa, As an Individual]

Thank you very much.

Thank you for the invitation.

As was said in the introduction, my name is Scott Findlay and I'm a professor of biology at the University of Ottawa. One of my areas of expertise is conservation biology. For the last few years I've been working with my colleague, Professor Stewart Elgie, of the Faculty of Law, in doing an assessment of SARA's performance to date.

Before we begin with the substance, I'd like to make a parenthetical comment. The first comment I would have is simply that, as a scientist, I regard SARA, like any law, as an experiment, and the purpose of the exercise is to evaluate that experiment and then use the evaluation to suggest ways in which the subsequent experiment can be improved. So the tenor of my comments is to try to see what we have done so far and to suggest ways of improving this particular piece of legislation.

Let us see how we've done so far. If you look at my brief, you will see figure 1. I think it tells the real story about SARA. If you look at the proportion of species we have thus far had available for listing, for subsequent production of recovery strategies and for critical habitat identification, it's fairly clear: we start off with 380 species that could have gone the full route of that process thus far and we're left with six for which we've thus far had complete critical habitat identification. I think it's fairly clear from these numbers that we have a little way to go in terms of the design of the instrument.

The first problem relates to listing. About 85% of species recommended for listing have indeed been listed. If you look at the ones that have not been listed and contrast those with the ones that have been listed, some patterns emerge.

The first is that the species that have not been listed tend to be those for which the Department of Fisheries and Oceans is the responsible authority, tend to be species that are harvested either commercially or for subsistence or through bycatch, and tend to be northern species. These are three general findings that tend to differentiate species that have been listed from those that have not

In regard to what we call the responsible agency effect, it seems to be fairly clear that with respect to listing, the Department of Fisheries and Oceans, Environment Canada, and Parks Canada Agency are using different processes for listing. In particular, it would appear that they're using socio-economic analysis at the listing stage to support listing decisions in a different manner. So we have this difference between the institutions that are responsible under the act for listing.

The second problem occurs at the recovery planning stage. The bottom line is that about one third of the species that ought to have had recovery strategies by now have indeed had recovery strategies, but very few of those were completed within the legislated timeframe.

So we have two problems: one being that recovery strategies are not being produced on time, certainly not within the timeframe mandated under the act, and the other that, thus far, relatively few of those that ought to have been produced have indeed been produced.

The third problem we've identified in our analysis involves critical habitat identification. As I showed in that first figure, to date, very little critical habitat has been identified. Most critical habitat that has been identified has been identified within existing protected areas. If you compare those species for which we have critical habitat identification in recovery strategies versus those for which we don't, it's fairly clear that there are some patterns that emerge.

Those patterns are shown in the third figure in my presentation. It looks to be the case that if you're a species that's found in a protected area, you're much more likely to have critical habitat identified, and if you're found on lands that are municipally owned or for which urbanization is considered an important threat, you're less likely to have critical habitat identified. In particular—and this is very interesting—in terms of the schedule of studies, which is a mandated component of recovery strategies under the act, landowner consultation is often an important element in the schedule of studies for those species that have not had critical habitat identified, so it appears that critical habitat identification is being held up because of the need for consultation.

Finally, there is the problem associated with timelines. Under the act, we have the possibility of the minister allowing for extended consultation before the recommendation is forwarded to the Governor in Council. It seems fairly clear that many species are being held up at this stage of the process. What happens is that you have species stuck in what amounts to listing purgatory for years, up to four or five years, before a decision is actually made.

Based on this analysis of SARA's performance, we have a number of specific recommendations.

The first recommendation is that, regardless of the responsible authority, they should all be following the same process for listing decisions. It shouldn't matter whether you are a bird or a reptile or a fish or a mammal; the process should be the same for all species.

The second is that there be explicit timelines imposed for extended consultations. Certainly the way this extended consultation is occurring now is not in keeping with the spirit of the act, particularly section 27, which imposed, at least notionally, a nine-month consultation period.

When the GIC proposes not to list a species, we suggest that this trigger a well-informed and transparent evaluation process and consultation process.

We recommend that the recovery planning process adhere closely to statutorily mandated timeframes.

We suggest that SARA include a specific timeline for implementation of recovery strategies—that is, action plans, for which there is no timeline within SARA now.

Sixth, we recommend that the predisposition to identify critical habitat at the recovery stage under SARA, which takes as its justification the precautionary principle, both in the preamble and in section 38, be comprehensively implemented. This has not happened up until now.

Finally, we recommend that critical habitat identification be based solely on biological criteria. Our analysis suggests that there are other factors working into that decision, and we would recommend that critical habitat identification be based solely on biological criteria.

In the final part of my brief, Professor Elgie has communicated from Papua, New Guinea, where he is now, unfortunately, and has provided some specific wording recommendations for amendments to the act that are in keeping with these recommendations.

Thank you.

[The Chair, Conservative, James Bezan]

Thank you, Dr. Findlay. I appreciate you respecting your time.

Dr. Barrett-Lennard, would you bring us your comments, please?

[Dr. Lance Barrett-Lennard, Head, Cetacean Research Program, Vancouver Aquarium Marine Science Centre]

Thank you very much, and good afternoon.

I'm a research scientist specializing in the ecology and genetics of marine mammals. I head the Vancouver Aquarium's cetacean research program.

The aquarium's mission is to effect the conservation of aquatic life through display and interpretation, education, research, and direct action. As such, it has a direct and abiding interest in the successful implementation of the Species At Risk Act.

I've been co-chair of the resident killer whale recovery team on the west coast since 2005, and I've worked on recovery strategies for six other marine mammals in Canada and one in the U.S. I also serve as an adjunct professor of zoology at UBC.

Today I'll discuss two ways in which lack of clarity, in my opinion, in the Species At Risk Act has led to confusion and inconsistency in species recovery planning, and I'll present some recommendations for improvements.

As committee members will know, SARA specifies that the plans for recovery must be developed in two discrete stages: formulation of a recovery strategy and formulation of an action plan. The act doesn't make clear why it specifies this two-stage process. Indeed, there's considerable confusion on the part of government managers about why such a system exists.

In my opinion, the drafters of SARA were correct in specifying this two-part process, because recovery really does involve two rather different sets of considerations.

The first step, preparation of a recovery strategy, is the strictly objective and scientific process of understanding and describing why a species is at risk and determining what general kinds of things would need to be done to alleviate that. It contains a description of critical habitat, if known; threats to the species; general measures that would reduce threats and protect critical habitat; and criteria for determining when recovery has occurred. The important point is that it should be a scientifically defensible document, a point the act fails to mention.

The second step, the preparation of an action plan, is the process of compiling a specific set of pragmatic recommendations about what in fact should be done to achieve the strategy, and that's given the constraints imposed by other laws, treaties, socio-economic factors, the imperative to minimize cost, and so on. This second step isn't strictly scientific, nor should it be. It brings lawyers, economists, stakeholders, and so on into the mix.

SARA, as I mentioned, doesn't clearly distinguish between the function of these two steps--between the separation of science and policy. Indeed, by requiring that recovery strategies be prepared in cooperation with stakeholders, it fails to recognize a fundamental need for scientific objectivity and it muddles the distinction between the two, that is, between strategies and action plans.

I'll talk a little bit about scientific advice. SARA specifies that COSEWIC must carry out its functions—the assessment of listing of species—using the best available scientific, community, and aboriginal knowledge. However, once COSEWIC has finished its job, the act is silent about using scientific expertise in recovery strategies or action plans.

It does specify that critical habitat must be determined based on the best available information, and in practice this has been interpreted as primarily scientific. However, based on my experience, I can say for the record that acquiring and incorporating scientific and other advice in recovery strategies is inconsistent at best. There are no built-in safeguards against bias or perceived bias in the choice of experts from whom advice is sought.

Let me explain how the process of working in this advice works at present. Recovery strategies are usually drafted by recovery teams, including government and non-government members. This membership is determined on an ad hoc basis, but generally includes species experts, representatives of NGOs and aboriginal groups, industry stakeholders, and representatives of other provincial governments and federal departments.

However, SARA doesn't specify that a recovery team must be used. In the last few years, DFO in particular has moved instead to using working groups of government staff. In some cases, these working groups invite external experts to technical workshops to hear the professional opinions, but they draft the recovery strategies themselves.

Recovery teams have been used in Canada for many years, and also in the U.S. Because they include non-governmental members, their deliberations are transparent—or tamper-resistant, if you like.

In contrast, these internal working groups may well engage in spirited debate behind closed doors—I'm sure they do—but at the end of the day the members are bound by internal directives and aren't free to express concerns to the public about the process or its outcome. The use of internal working groups removes transparency from the recovery planning process, limits the input of non-government scientists, restricts public and scientific scrutiny, and, as such, is less likely to produce objective recovery strategies than are teams.

To illustrate the strengths of recovery teams over internal working groups, I'll refer to my own experience as co-chair of the resident killer whale recovery team. We had 23 members, of whom about one quarter were federal government employees.

In May 2006, we completed a draft of the strategy and submitted it to DFO for the minister's consideration. The draft contained a description of critical habitat, as required by SARA, and was completed within the specified timeframe.

As Dr. Findlay has mentioned, and as Dr. Pearson will reiterate, critical habitat is essential to recovery planning. Without a description of critical habitat, little can be done to conserve a species.

DFO didn't post the document by the legal deadline, but it began a process to amend it by removing the critical habitat section. This was done in accordance with a draft policy, which the team was not allowed to see. Nor were we allowed to see the amendments, which were simply described to us. We expressed concern and requested an explanation, and when that wasn't forthcoming, we resisted the change by requiring that our names be removed from the document.

DFO took no action until the following spring, when it restored the critical habitat section but revised another key section in response to a request from the Department of National Defence. That section was also restored after the team objected. Shortly thereafter, DFO made a third amendment, without explanation, by removing a section listing threats to critical habitat. This, too, was withdrawn after strong objection by the non-government members.

The strategy was finally posted in March 2008, more than a year and a half after the legal deadline.

The Minister of Fisheries and Oceans posted a critical habitat protection statement in September 2008 saying, in effect, that no protection of critical habitat was necessary. This led to the launching of a lawsuit by a large and influential group of NGOs. The statement was rescinded in February 2009 and was replaced, at last, with a critical habitat protection order.

My point in detailing this litany of roadblocks is that without a recovery team with independent members, the killer whale strategy would not contain the essential elements for recovery.

In light of these experiences, I have two simple and clear recommendations for amendments to SARA. First, the revised version should clearly describe the reasons for separating recovery strategies and action plans by noting that the former must be science-based and objective, and the latter must be subject to social and economic constraints.

Second, SARA should specify that the competent minister must seek the best available scientific advice in the preparation of recovery strategies; should use recovery teams and commit to a transparent process for determining their membership; and should ensure that teams include independent species experts.

Thanks again, and please feel free to look me up at the Vancouver Aquarium the next time you come to British Columbia.

[The Chair, Conservative, James Bezan]

Thank you, Dr. Barrett-Lennard.

Dr. Pearson, the floor is yours.

[Dr. Michael Pearson, Registered Professional Biologist, Pearson Ecological, As an Individual]

Good afternoon.

I'm a self-employed biologist. I specialize in species at risk and habitat restoration in British Columbia. My Ph.D. dissertation was done at UBC and focused on the ecology of two SARA endangered species, the Salish sucker and the Nooksack dace. I am a member of the recovery team for the species and lead author of both recovery strategies, and I've worked on them continuously since 1997, which is to say that I've spent 14 years talking and negotiating with landowners about species at risk and habitat protection.

I would like to speak today about the identification and protection of critical habitat under SARA, drawing upon my experience in dealing with landowners, in producing recovery strategies, and in a lawsuit that resulted from the publication of one of them. Let's start there, with the Nooksack dace recovery strategy.

SARA requires that recovery strategies identify critical habitat “to the extent possible, based on the best available information”. For the Nooksack dace, we were able to produce maps showing the specific areas of stream containing critical habitat. SARA’s definition also explicitly includes “any other areas on which aquatic species depend directly or indirectly”. Since there's a large literature saying that streamside vegetation or riparian areas are critical to the health of aquatic habitats, we included such streamside areas.

To define the width of those buffer strips, we adopted methods already in use in British Columbia in the riparian area regulation. We did this because these methods are scientifically sound and because they had already been agreed to by both the provincial and federal governments for use in areas that are slated for land development.

We submitted the recovery strategy containing these maps in August of 2005. More than a year later, when the draft recovery strategy was posted on the public registry, the maps of critical habitat had been removed, our definition of critical habitat had been removed, and the list of activities likely to result in its destruction was also absent. The recovery ream had not been consulted on any of these changes although our names remained on the strategy as its authors.

Subsequent negotiations between the team and DFO resulted in the reinsertion of some of the deleted material, although not the maps, and in the inclusion of a disclaimer in the critical habitat section stating that the habitat portion of the strategy had been altered to conform with government policy.

Soon after its publication in July 2007, a coalition of environmental groups launched a lawsuit claiming that the strategy failed to identify critical habitat in accordance with SARA. I was one of three recovery team members to provide them with an affidavit.

Over the next two years, the lawsuit proceeded through a series of legal machinations, including an attempt to strike much our affidavits, the redaction of e-mails describing the government’s reasons for removing the critical habitat, and an attempt to get the lawsuit dismissed as moot through the belated inclusion of the critical habitat maps.

Ultimately, the Federal Court found in the environmental groups’ favour. In his decision, Justice Douglas Campbell described the government’s actions. He said, “This is a story about the creation and application of policy by the Minister in clear contravention of the law, and a reluctance to be held accountable for failure to follow the law”.

To its credit, the government has responded positively and appears since then to have adopted policies in recovery planning aimed at identifying critical habitat to the extent possible, but other problems have emerged.

The belated inclusion of the maps for critical habitat triggered a requirement for the minister to either make an order under SARA to protect the critical habitat or release a habitat protection statement explaining how it was already protected. In December 2008, a protection statement, rather than an order, was released, and I was quite disappointed in its contents.

It claims that most of the threats to critical habitat are already addressed by section 35 of the Fisheries Act and dismisses other threats as not being to habitat but to individuals. Now, from 14 years of working in these streams, I know this isn't true.

Section 35 of the Fisheries Act states, “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat”. But for this section to be applied, it requires that some person must be identified and presumably charged as the culprit.

But who's the culprit when a hundred wells and 20 irrigation pumps spread over 50 square kilometres collectively suck a stream dry? Who's the culprit when runoff from rooftops and from roads combine to produce flash floods that damage habitat, or when erosion from dozens of properties lacking riparian vegetation combines to clog a spawning bed?

These are cumulative impacts, often from non-point sources of pollution. They are what most threaten Nooksack dace and a variety of other species, yet they remain completely unaddressed, and the reason is that the Fisheries Act cannot address them--SARA can.

Consequently, the habitation protection statement, in my opinion, continues a pattern of delay and attempted avoidance of effective action to protect species at risk and is certainly insufficient to protect Nooksack dace critical habitat.

So what to do?

I work regularly in about 15 watersheds in the Fraser Valley and I have spoken with scores of landowners about habitat and species at risk over the years. Most have been farmers who perceive that they may have to give up some land or some agricultural practices on land adjacent to waterways if habitat protections are adopted and enforced.

Not surprisingly, most are hostile to this notion, but only because they fear that the costs of such protection are going to be borne by them alone. Farmers are not by nature anti-conservation or anti-environment and most will readily accept a scenario in which society pays for society's benefits from their land. A little money on the table goes a long way.

The circumstances provide a rather instructive example of how this might work. Three of the four Canadian streams containing Nooksack dace flow south across the U.S. border into Whatcom County, Washington. I can stand on the O Avenue bridge, the border road on the Canadian side, and look at a recently reforested riparian area in Whatcom County along Bertrand Creek. It is one of the many stretches of previously denuded farmland that the state has leased from farmers for its ecological services, in their case the preservation of water quality and the protection of endangered salmon stocks.

This brings up an important point. These ecological services of critical habitat extend far beyond species at risk. Nooksack dace are always found with salmon, British Columbia's most iconic and economically important native species.

Healthy aquatic and riparian habitats purify water. They store carbon. They function as primary pathways in the landscape through which water and nutrients and organisms move. They're essentially the circulatory system of an ecosystem, and it's in our interest to protect them.

There's another sort of potential cure. In B.C., landowners of small rural properties can pay low agricultural taxes if they show a few thousand dollars in gross agricultural income. This promotes the clearing and farming of very marginal lands by people who have little knowledge of sound agricultural practices or incentives to practice them, often on small hobby farms. If those people were offered tax relief in the form of grants to offset the municipal taxes in the same way that is done with agricultural taxes, this practice would be alleviated.

To conclude, I have three specific recommendations.

First, the regulations regarding compensation should be developed immediately, as provided for under section 64 of the act, to facilitate the protection of critical habitat on private land.

Second, use SARA protection orders or conservation agreements to take meaningful steps to protect critical habitat, rather than claim, without scientific support, that the existing laws protect species adequately. I mean, if existing laws were working adequately, these species would not be on the endangered list.

Third, to reiterate what my colleagues have said, recovery teams should be given statutory life under SARA and directed to use the best available knowledge in developing recovery strategies to restore species in their habitat.

Thank you for your time and attention.

[The Chair, Conservative, James Bezan]

Thank you very much.

Our final presenter is Dr. Mooers.

[Dr. Arne Mooers, Associate Professor, Biological Sciences, Simon Fraser University, Scientific Committee on Species at Risk (SCOSAR)]

Good afternoon. My name is Dr. Arne Mooers and I work at Simon Fraser University. I am accompanied by my colleague Dr. Jeannette Whitton, who is with the Faculty of the University of British Columbia.

I am speaking on behalf of the Scientific Committee on species at risk. This committee is composed of a dozen professors and scientists from across the country. We met for the first time in November 2008. Our purpose is to assess how science is used in the Species at Risk Act, and how science can be used more effectively.

Thank you for giving us the opportunity to speak to you today.

The data you heard about and the stories you heard just now informed our deliberations in the Scientific Committee on Species at Risk.

The main higher-level recommendation we make is that lawmakers--you--ensure a clear separation between scientific information delivery, which is what we make, and subsequent government action at all stages of the SARA process. Such a separation would clarify the tough decisions and trade-offs that Canadians, through you, have to make when managing their natural heritage.

We made a couple of figures. I hope you have them in front of you.

Figure 1 is a schematic of how we see SARA constructed in the law and where science feeds into the law. The top box represents the stage where the Committee on the Status of Endangered Wildlife in Canada, COSEWIC, uses the best available information and internationally agreed-upon criteria to decide whether a wildlife species merits legal protection. Now that white box, you'll notice, is not embedded in any grey policy-plus-science box. It stands alone. The COSEWIC decision is made public, and the government--you--subsequently responds publicly to the scientific assessment by accepting it, rejecting it, or referring it back.

We, SCOSAR, are in favour of this clear delineation. We support COSEWIC's specific recommendation made to you about a year ago: that the separation between an independent, publicly available assessment and government decision-making be clarified and strengthened. We think this is a strength--perhaps the strength--of SARA as it's written now.

Now, as we move to the later stages in that flow chart, which involve the actual listing process, the recovery, and the planning, the separation between independent science and policy does not exist anymore. Here, science is embedded within a policy framework.

Dr. Findlay's presentation highlights the issue concerning which species get listed and which do not following assessment. We worry about institutional conflicts of interest, and we worry about perceptions of such conflicts of interest, whether they are there or not. We believe that clear best practices should be followed here, as anywhere else.

Here's our first recommendation, and it includes lots of important modifiers, so I apologize, because it's a long sentence. If a species may not be legally listed--if there's a chance--then a more formal, independent, transparent, consistent, and complete process should be followed. That is not the case at the moment, as Dr. Findlay pointed out. The scenarios used in the listing analyses should be clear and open to independent scrutiny. And both the long-term and short-term considerations and the costs and benefits of legal listing should be included. Those costs and benefits should be to all Canadians.

You heard, from Dr. Barrett-Lennard's experience, that the stages following listing--now we're moving on to what to do--do not always work smoothly either. While it is our view--and the law, I think, is clear--that independent science will be but one of the voices that contribute to the drafting of recovery strategies, in the current chorus that emerges, the input of independent science is unclear.

Recent lawsuits and threats of lawsuits related to the failure to, for example, identify the habitat necessary for survival and recovery, as you've heard, represent one costly negative outcome. Such legal action might have been avoided if independent scientific oversight had been part of the recovery planning process. Those draft strategies, the ones that were posted, would likely have included at least partial critical habitat.

Consequently, our second formal recommendation is that an independent scientific committee, which we have nicknamed COREWIC--Committee on the Recovery of Endangered Wildlife in Canada--be called upon to evaluate recovery strategies and action plans. Such a body would offer clear advice as to whether a set of policies on how to achieve the stated aims of the legislation could be met with a particular recovery strategy and a particular action plan.

You have sections 40 and 11 that can be used. The COREWIC reports would be made public in the same way COSEWIC reports are. Elected officials, speaking on behalf of Canadians everywhere, would then respond publicly, just as they do regarding listing. There may even be possible models for such a set-up already in existence at the federal level in Canada.

Given political realities, we do not think this step would slow draft recovery strategies and action plan production. In any case, as you know, a strategy or plan that does not meet its stated goals is a waste of tax money.

Overall, we believe that the general approach of separating scientific data collection and analysis from policy decisions, as outlined above--the separation--could be extended to all phases of the SARA process. We outline this in a second figure, which you have before you, that simply moves the science boxes out that feed in, so that Canadians can see what goes in and what comes out.

Such a separation of scientific input from government response mitigates against conflict of interest and allows Canadians to see how difficult decisions are made on their behalf. Canadians may well decide that a particular wildlife species is not worth protecting and recovering. However, it is unhelpful to suggest to Canadians that such a wildlife species will be protected and recovered if the data suggests otherwise.

We submitted a formal brief, where we outline our reasoning further. We also highlighted a few other issues, including some definitions of difficult terms that are not now defined in SARA but that could be.

We would be happy to discuss these matters with you if you are interested.

Thank you very much.

[The Chair, Conservative, James Bezan]

Thank you very much.

I appreciate your opening comments, all of you, and now we're going to go to our seven-minute round.

I'll ask the witnesses to keep their responses as brief as possible when answering questions from our members so that the members can get the most out of their time.

Mr. McGuinty, you'll kick us off.

[David McGuinty, Liberal, Ottawa South, ON]

Thank you very much, Chair.

First of all, I want to thank all the panellists for their briefs. This is just a terrific and coherent set of briefs, and is really helpful, so thank you for the time you took to whittle them down to just a few pages.

In all your presentations, the golden thread that seems to be woven through them is that you want to see a much clearer distinction between science and the application of policy decision-making.

I just want to ask a couple of quick questions, if I may. On the Nooksack dace case study, this took place in 2006, is that correct? Was the timeline roughly 2006-07?

[Dr. Michael Pearson]

The strategy went from the recovery team to DFO in 2005, and then it was posted in 2006 on the SARA registry.

[David McGuinty, Liberal, Ottawa South, ON]

And this ultimately led to litigation?

[Dr. Michael Pearson]

Yes, it certainly did.

[David McGuinty, Liberal, Ottawa South, ON]

Who was the minister at the time? Who were the ministers involved at the time?

[Dr. Michael Pearson]

I don't know the names of the ministers.

[David McGuinty, Liberal, Ottawa South, ON]

July 2007.... Does anyone recall? No? Okay.

In the killer whale case study, it was more explicitly made, I think.... What became very clear here is that.... What you're saying here is that there was interference. Is that too strong a word to use?

[Dr. Lance Barrett-Lennard]

Sorry, in the killer whale case...?

[David McGuinty, Liberal, Ottawa South, ON]

Yes.

[Dr. Lance Barrett-Lennard]

I don't know if it was interference or not. All we know is that our initial document was amended to remove critical habitat. My understanding--and this is what the team was told at the time--was that it was in adherence with this draft policy that we were unable to see, and that was a policy for the inclusion of critical habitat and recovery strategies.

[David McGuinty, Liberal, Ottawa South, ON]

And this led to litigation--

[Dr. Lance Barrett-Lennard]

I don't know the origin of that policy.

[David McGuinty, Liberal, Ottawa South, ON]

Okay. But this ultimately led to litigation as well.

[Dr. Lance Barrett-Lennard]

No. Really, in the killer whale case, litigation didn't come about until the minister issued a critical habitat protection statement. At that point, NGOs litigated, feeling that there was very good evidence that an order in fact should have been issued.

[David McGuinty, Liberal, Ottawa South, ON]

Who was the minister who issued that statement?

[Dr. Lance Barrett-Lennard]

Sorry. Like Dr. Pearson, I don't remember.