Environment Committee on May 4th, 2010

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you.

I also want to thank all four of you for these incredible briefs; I think they're the best I've seen. Because you've grounded them in your experience on the ground as scientists, they're really very helpful, and then they're tied into the court cases.

There's a quote provided, which I believe is in Dr. Pearson's brief, about Justice Campbell saying, “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”. I have to say that is a pretty stunning statement about the government.

What's so interesting about your testimony is that you've been involved in separate instances of preservation of species, yet you come here and you present, across the board, very similar recommendations.

First, what further actions do you think are required to prevent the need for communities or scientists or organizations to resort to the courts? Do you feel that you've seen progress, at least in your species protection? Is there a shift in what's going on?

Second, I would tie that back to your testimony about the fisheries department. We did hear from the Fisheries Council of Canada, which was trying to convince us that in the matter of protection of fish species under SARA, it really can be handled just under the Fisheries Act, and there's no need for it to be handled under SARA. Yet your testimony seems to say completely the opposite.

Would you like to respond to both of those questions, together or apart?

[Dr. Michael Pearson]

Sure.

With respect to the Fisheries Act, it's very good at what it does or is a very useful tool for what it was intended to do, which is, in very clear instances, where you can point to the pipe spewing something or point to the person who's done something and say that “this has destroyed habitat”.

But in this day and age, certainly for the fish that I work on--and I would say for most other species--a lot of the problems are non-point source pollution, and they are cumulative. It's death by a thousand cuts. There's no one that you can point at, so the Fisheries Act is just not up to the job.

SARA, in my understanding of it, certainly can be used in that way and should be.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay.

Dr. Mooers or Dr. Findlay. No?

Dr. Barrett-Lennard.

[Dr. Lance Barrett-Lennard]

I'll respond to the part of the question where you asked about whether there had been any improvement that we could see.

First, we've now been discussing for some time the considerable apparent reluctance to identify critical habitat and recovery strategies. Whether this is growing pains or whether it's a more consistent policy is something that I could speculate on, but it would only be speculation.

As far as improvement is concerned, after the Nooksack dace case judgment, we're seeing at least the Department of Fisheries begin to pull up its socks in relation to recognizing that describing critical habitat is not optional--it's in the act.

The reason that has been used in many cases, that of insufficient evidence, is not supported by the scientists and not supported, in many cases, by the recovery teams. We are seeing more progress being made in this area and new draft recovery strategies coming out with critical habitat in them.

[Dr. C. Scott Findlay]

Perhaps I could make three quick comments.

The first one is with respect to the DFO effect on listing. This analysis has yet to be updated, but it's very clear that hitherto, at least up until the fairly recent past, there were different processes being followed by DFO on the one hand and Environment Canada and Parks Canada on the other to support listing decisions. As a scientist, I'm not about to pass judgment, necessarily, on which of those is better. What I can say is that they ought to be the same. That's point number one.

The second point relates to the Fisheries Act. If the Fisheries Act did everything that SARA does for marine mammals and marine and aquatic fish, then you could argue that we don't need a SARA for anything that lives in the water or the oceans. Clearly, SARA and the Fisheries Act have two different purposes, and insofar as the instrument has been designed to try to achieve the stated purpose, I would argue that you need both of them. I think the argument that we can do everything under the Fisheries Act says that, in essence, the Fisheries Act is like SARA for marine or aquatic species, when it is clearly not.

The third point, which relates to critical habitat, is that the reason that critical habitat hitherto has not been defined very well or has not been identified at the recovery stage is probably because it has been interpreted with maximum ministerial discretion. This problem plagued the early days of the Endangered Species Act in the United States. They had exactly the same problem because the issue was critical habitat designation “to the extent possible”. That was interpreted as allowing what amounted to tremendous ministerial discretion under the U.S. Endangered Species Act.

So what we've seen very recently is that because of the court decisions, that particular section of the act is now being interpreted differently. I think my colleagues have summarized it appropriately by saying that there does seem to be a movement now in what we would consider to be the correct direction, insofar as there's now more emphasis being placed on critical habitat identification at the recovery stage. Whether there is still some way to go is, of course, a different issue.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay. I notice two themes. One is that you talked a lot about the need to infuse science, and I wonder if one of you could just summarize this. It's my understanding that you're recommending that there also be a COSEWIC type of committee of scientists for the recovery strategy and critical habitat area. One of you also recommended that it's actually missing from the statute, and that they're consulting with everyone except scientists, which I thought was a really good thing to point out.

We've heard a lot from people who are saying that we should have socio-economic considerations in that second stage of recovery, and then there are others who are saying no, they shouldn't be there. I'd like to hear your opinion on that.

[Dr. Arne Mooers]

I could speak to the first part of that question. Our recommendation is for a body that might look something like COSEWIC--or it might look like something else. There is something called the Challenge Advisory Panel that deals with toxins, which works in an advisory capacity but is public. Dr. Findlay actually sits on it and he could speak to that as a possible model.

But part of the motivation for this recommendation that there be some sort of oversight panel is the feeling that because recovery teams are not in SARA, and because they have no legal basis, they may disappear. Up till now, independent scientists have been invited, and that's great, but they don't have to be invited. So then what happens? If you want to learn more about a possible model, perhaps Professor Findlay could tell us.

[The Chair, Conservative, James Bezan]

Thank you. The time has expired.

We will move to our last questioner in the seven-minute round.

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

Thank you, witnesses, for being here. It's very nice to see that three of our scientists here are from British Columbia, including one from my beautiful riding of Langley. Thank you so much for being here and making these efforts.

I have more questions than I have time for, so I'm going to ask that your answers be somewhat short.

I want to focus on consultation. Is there enough time being given, particularly for aboriginal traditional knowledge? It seems as if that is being excluded from your recommendations. You've touched on socio-economic factors being considered, particularly when identifying critical habitat. It sounds to me like you're not in support of that.

I'd like to start with Mr. Pearson. You did work on the Salish sucker and the Nooksack dace. On page 4 of your brief, you indicated that you've done work on:

...about 15 watersheds in the Fraser Valley and 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 land or some agricultural practices on land adjacent to waterways...Not surprisingly they are hostile to the notion...because they fear that the costs of such protection will be borne entirely by them.

Then you shared a recommendation, or something to think about, wherein property tax relief in the form of a grant could be given in return for the land that was dedicated.

To this point, we've been looking at critical habitat that has not primarily been in urban or suburban areas; it has been in boreal forests and federal lands. So we haven't really gone into the area of compensation, but you brought that up and I'm going to ask you to elaborate a little on that.

If a farm has a stream that's going through it, or there's a ditch going around it, or even if local government is wanting to maintain its ditching systems, these are all issues that local government has to deal with in dealing with DFO in British Columbia, both provincially and federally. So where would these grants come from to pay compensation? There's also the question of how big the setbacks should be. It depends on the topography, the historical watercourses.

Again, I have too many questions to ask for the short period of time I have available, but could you focus on where the grants will come from and how you see this being worked out? Have you talked to local government, too? Because it sounds like this will be downloaded onto local government?

[Dr. Michael Pearson]

I'm not sure about the downloading. In my mind, the grants would need to be federal grants because it's federal legislation and a federal imperative that's being dropped on them.

I work quite a bit with municipalities on things like drainage and those kinds of issues. Really, there's not much of a conflict with the drainage issues that we found. The same things that create problems for fish habitat create problems for drainage as well.

There are culverts that block migration and raise water levels behind them at the same time. The grass that plugs drainage ditches and impedes drainage is no different from the mechanism that occurs when that grass dies and rots, because it then robs the oxygen from the water and degrades a critical habitat.

We've found that there's a lot of room for common ground. I've done a lot of work on those issues in Langley, the District of Kent, and Chilliwack, all areas that I'm sure you know.

With respect to the ATK, aboriginal traditional knowledge, I certainly would not want to be interpreted as wanting to discount that or not use it that. I think “the best available knowledge” would certainly include that.

[Mark Warawa, Conservative, Langley, BC]

Okay.

So on setbacks for streams going through farms, that would limit what the farmer or landowner could do with their land; they can't farm up as close as before. If it's identified as a critical habitat, what you're suggesting is that it would include private lands and that there should be compensation for it. Am I interpreting your views correctly?

[Dr. Michael Pearson]

That's correct.

[Mark Warawa, Conservative, Langley, BC]

Okay. On the setbacks, because it's federal legislation, there still is only one taxpayer from whom the dollars are actually being taken in providing compensation. You're suggesting that compensation would be at fair market value. Is that correct?

[Dr. Michael Pearson]

The way it's done in the example I used is that they lease the land. They assess the land for its agricultural value, because, of course, all farmland is not equal. There is some excellent farmland and some that is very marginal. They classify the land and assess its fair market value, and the lease pays the full fair market value over a period of 15 years. They've had very good uptake with that from the farmers in Whatcom County.

[Mark Warawa, Conservative, Langley, BC]

Are local farmers you've consulted with receptive to this idea?

[Dr. Michael Pearson]

Sure. As soon as you ask them what they would do if they were paid a grant just to let it go, there are a lot of questions and details, but it's curiosity in negotiation as opposed to hostility.

[Mark Warawa, Conservative, Langley, BC]

Okay.

Is there any time left?

[The Chair, Conservative, James Bezan]

Yes. You have a minute.

[Mark Warawa, Conservative, Langley, BC]

Consultation with first nations appears to be the common thread through your testimony. Am I misinterpreting that?

It seemed that you wanted to have the nine months, the nine months...that we need to meet the timelines and that consultation should be done in that. We've heard from first nations that they want to be consulted in an adequate fashion. They don't want to be repeatedly asked the same question by the same people. They want it to be genuine consultation.

Could you comment on that?

[Dr. Lance Barrett-Lennard]

I wonder if you could just clarify. Are you speaking of the recovery planning stage, the listing stage, or the action planning stage, or...?

[Mark Warawa, Conservative, Langley, BC]

After a species has been identified--and first nations are part of the COSEWIC recommendations--it goes to government and then, as part of that process before critical habitat is identified, there has to be proper consultation with first nations. They want to be consulted throughout the whole process and participate in the whole process.

Yes, you need to have a scientific biological critique, and criteria have to be based on science, but first nations traditional knowledge has to be part of that, too.

[Dr. Lance Barrett-Lennard]

I certainly agree. I didn't detect a common thread amongst this group suggesting that we thought anything other than that, and certainly when I refer to species experts and the scientific information that we use to inform recovery strategies, or for that matter, COSEWIC listings, that would include traditional aboriginal knowledge. It would also include community knowledge.

I run a program at the Vancouver Aquarium, a citizen science program, where we acquire information from the public about the sightings of whales, dolphins, and porpoises throughout the province, and we amass this into a huge database and perform scientific analyses of it. We wouldn't have a prayer of doing that without community involvement, including a large component of aboriginal involvement.

So I'm sorry if we've given that impression. I don't think it's a concern.

[The Chair, Conservative, James Bezan]

Time has expired. That ends our seven-minute round.

Before we kick off the five-minute round, committee members, I want to try to save some time at the end of the meeting so we can go in camera to talk about some conflicts that some members have with next Thursday's meeting--not this Thursday, but next Thursday. We need to talk about the schedule a bit.

With that, I'll kick off our five-minute round.

Mr. Scarpaleggia.

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

Thank you, Chair.

I was just hoping to clarify a couple of statements that I didn't quite grasp. I think it was you, Dr. Mooers, who said that we shouldn't protect wildlife if data suggest otherwise. Did I understand correctly?

[Dr. Arne Mooers]

We shouldn't protect wildlife if the data suggest otherwise...? No, I didn't say that. I did say something that has some of the same words. I said it is unhelpful to suggest to Canadians that a certain wildlife species will be protected and recovered if the data suggest that what's being proposed would not do that.