Environment Committee on May 6th, 2010

[The Chair, Conservative, James Bezan]

I'll call the meeting to order. It is 3:30, and we're having our last panel on the Species at Risk Act. We've been having a very fulsome discussion for 12 months now. It's good to get to the end of our witness testimony so we can start working on our report.

Joining us today from the Nunavut Wildlife Management Board is Michael d'Eça, legal counsel; from the Ontario Federation of Anglers and Hunters we have Terry Quinney, provincial manager of fish and wildlife services. Welcome.

Joining us by video conference from St. Andrew's By-the-Sea in New Brunswick, we have the Atlantic Salmon Federation and Frederick Whoriskey, vice-president of research and environment.

Mr. Whoriskey, can you hear us well?

[Dr. Frederick Whoriskey, Vice-President, Research and Environment, Atlantic Salmon Federation]

I can hear you very well. Thank you very much.

[The Chair, Conservative, James Bezan]

Perfect. With that, we're going to go to our opening comments. I ask all witnesses to keep their opening testimony under 10 minutes.

Mr. d'Eça, if you could kick us off, we'd appreciate that.

[Michael d'Eça, Legal Counsel, Nunavut Wildlife Management Board]

Good afternoon, committee members. It is a pleasure to appear before you today.

I'm representing the Nunavut Wildlife Management Board, which I will refer to as the NWMB, or the board, in my comments today.

It's an institution of public government, established by the terms of article 5 of the Nunavut Land Claims Agreement, known as the NLCA. The board is the main instrument of wildlife management and the main regulator of access to wildlife in the Nunavut settlement area. That's a massive expanse of Canada’s polar region, approximately the size of continental Europe. Comprising the major part of the territory of Nunavut and 23% of Canada’s land mass, this settlement area encompasses a region spanning more than 2.1 million square kilometres, including the marine areas of the arctic archipelago and the 12-mile territorial sea adjacent to Nunavut. In addition, approximately 43% of Canada’s ocean coastline is found within the Nunavut settlement area—that's 104,000 out of a total of 243,000 kilometres.

Within its extensive wildlife management jurisdiction, the NWMB has exclusive decision-making authority with respect to establishing, modifying, or removing quotas, and all other harvesting restrictions on all wildlife, including species at risk, in the Nunavut settlement area.

The board also has the exclusive decision-making authority to approve the designation of rare, threatened, and endangered species—that is, to approve the legal listing of all species at risk found within Nunavut. It has the authority to approve plans, including recovery strategies, for the management and protection of particular wildlife and wildlife habitats, including species at risk and their habitats. It also has the authority to approve the establishment of conservation areas, and from our perspective today, that includes critical habitats, which are related to the management and protection of wildlife and wildlife habitat.

The NWMB's decision-making authority is subject only to the minister’s authority to accept, reject, or vary that decision, strictly in accordance with the terms of the NLCA.

The NWMB submission, which I think you have received, includes four recommendations, with supporting rationales and evidence that the board hopes you will find sufficiently reliable and persuasive to convince you to adopt the recommendations as worthy improvements to SARA and related federal species-at-risk programs.

Very briefly stated, the recommendations are as follows. First, because SARA as currently written fails to fully recognize the decision-making jurisdiction of the NWMB and the significance of the NLCA article 5 decision-making process, the NWMB recommends that you add a new section to SARA, section 27, which states:

The Minister and the Governor in Council must take into account any applicable provisions of treaty and land claims agreements when carrying out their functions.

That same direction already applies to COSEWIC in virtually the same circumstance—that is, the circumstance of the assessment and listing of species. The existing COSEWIC provision can be found in subsection 15(3) of the act.

The second recommendation is to develop and implement an effective plan to address the conclusions and recommendations found in the 2006 independent evaluation of federal species-at-risk programs. That thorough and professional evaluation was requisitioned by the federal government and conducted by the respected environmental management consulting firm of Stratos.

The third recommendation is to remove the ineffective non-derogation clause currently in section 3 of SARA and replace it with an effective non-derogation provision, but placed inside the federal Interpretation Act. I don’t believe you will find any aboriginal support for section 3. You will find a consensus, including within the Department of Justice, that the current ad hoc approach to legislated non-derogation clauses—an approach that features an absence of aboriginal consultation—is unsustainable. That approach is the one that was used in this very Species at Risk Act that you are reviewing on behalf of Parliament. Proceeding by way of an appropriate clause in the Interpretation Act has already been successfully adopted by two provincial jurisdictions, Saskatchewan and Manitoba, and has been fully endorsed by the Senate Standing Committee on Legal and Constitutional Affairs.

The last of those recommendations is to improve the language of SARA concerning the inclusion of aboriginal traditional knowledge in management, protection, and recovery measures undertaken pursuant to the act, and consider the establishment of an aboriginal traditional knowledge institute.

Because of time considerations, I'm going to focus on recommendation 4 during my remaining opening remarks, but our submissions cover the reasons and evidence with respect to the other recommendations.

For the purposes of this submission, the term “aboriginal traditional knowledge” refers to all types of information relating to the environment, derived from the experience and traditions of aboriginal people. The use of the word “traditional” is meant to convey that particular knowledge is informed by the experience and traditions of many generations, including the current ones. It is not meant to convey that the knowledge in question is old, dust-covered, and unchanging. ATK, as it's known, is dynamic, evolving, and iterative in nature. It is informed by the past and the present. It includes both traditional and current elements. Its purpose is to provide practical, realistic, tested information and explanation to people who are highly dependent on the land.

While legitimate concerns can certainly be raised about the adequacy of and weight given to ATK in the assessment and listing of species at risk, the fact is specific requirements are set out in the act to at least attempt to ensure that necessary assessment and listing decisions are made on the basis of, among other considerations, the best available ATK.

This is not so with respect to the development and implementation of management, protection, and recovery measures for species at risk. Except for the statement in the preamble that says “the traditional knowledge of the aboriginal peoples of Canada should be considered…in developing and implementing recovery measures”, the act says nothing further about the inclusion of ATK in management, protection, and recovery efforts for species at risk.

While consultations carried out pursuant to the act might elicit some useful ATK, that approach would be far from ideal. The analogy would be to try to obtain relevant scientific information by relying on comments, if any, from appropriate scientific specialists, if any, who happened to attend a public meeting. It is essential to take specific and necessary steps in accessing relevant ATK, just as one would do in accessing particular scientific knowledge and expertise.

When considering these points, please keep in mind that as of June 2007—almost three years ago—389 species had been listed under SARA as being “at risk”. That number has continued to steadily rise. In 2009 it stood at 425. Recovery strategies as of June 2007 should have been completed by that time for 228 of those 389 species. In fact, only 55 species, 24%, had applicable recovery strategies, and only 16 critical habitats, a mere 7%, had been identified. It's clear that a primary focus of SARA during the coming years must be on the measures necessary to manage, protect, and recover the growing hundreds of listed species in Canada.

To guarantee that the best management, protection and recovery measures are employed, it is essential to ensure that both science and ATK, which are vital, complementary knowledge systems, are considered and applied.

With respect to the recommendation to establish an aboriginal traditional knowledge institute, the NWMB is of the view that the time has come to seriously consider such a step. The ATK institute could, first and foremost, provide invaluable assistance in the development of the growing number of recovery strategies, action plans, and management plans that would benefit from the inclusion of ATK. The institute could also serve as an effective forum for the necessary dialogue and collaborative work that needs to be undertaken between scientists and ATK holders, through the organizing and holding of science and ATK meetings, workshops, colloquia, and symposia.

In addition, best practices in accessing, considering, and relying on ATK need to be developed and advocated. Such practices would not override established community practices. Rather, they would serve as a backstop, a set of standards that would apply in the absence of local requirements.

Finally, Mr. Chairman, it's important to also keep in mind that the most valuable and abundant ATK resides in elders across this country. Sadly, many of those elders, with their rich lifetimes of experience and strong connections to previous generations, are passing away. Every reasonable effort needs to be made to ensure that their ATK is authentically and respectfully preserved. The development and maintenance of a database and audio and video library on ATK could form an important part of the mandate of such an institute.

Thank you very much.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Quinney, you're on.

[Dr. Terry Quinney, Provincial Manager, Fish and Wildlife Services, Ontario Federation of Anglers and Hunters]

Thank you, Mr. Chair.

Good afternoon, ladies and gentlemen. The 100,000 individual anglers and hunters and 670 member clubs that make up the Ontario Federation of Anglers and Hunters membership and subscribers are among the most committed fish and wildlife conservationists in Canada. We have provided you, ladies and gentlemen, with a written submission. I'm not going to go through that written submission in its entirety. I hope you will be able to at some point. If you have at that time additional questions or if we can be of additional assistance, please feel free to contact us at any time.

Our conservation legacy includes populations of abundant, healthy fish and wildlife fully restored from near extinction. Through voluntary efforts and lobbying for effective conservation laws and enforcement, many species that were once almost extirpated are again common today, species such as wild turkey, moose, wood ducks, beavers, Canada geese, and eastern bluebirds, to name a few. Importantly, these populations were restored without provincial or federal endangered species legislation. Rather, they were restored because they are valuable to anglers, hunters, trappers, and other naturalists who have a vested interest in protected habitats and a healthy environment.

Our legacy of game and non-game species recovery continues today with OFAH members volunteering their time and their money to the restoration of, for example, eastern elk, Atlantic salmon to Lake Ontario and its tributaries, native trumpeter swans, spotted turtles, and peregrine falcons, to name but a few.

Our efforts continue to focus on preventing species from becoming endangered in the first place. To us, it has always been clear: maintaining healthy habitats and biodiversity requires federal and provincial vigilance and support on many fronts, including protection of natural habitats through sustainable development and wise land use planning; protection of Canadian ecosystems from pollution and the invasion of harmful exotic species; provincial and federal support for private land stewardship; scientifically based fish, game, and fur-bearer population management and associated sustainable resource use; and, as the last line of ecosystem defence, effective species at risk legislation and recovery programs.

The Species at Risk Act, SARA, and associated programming should be just that, the last line of biodiversity defence. It should not, in fact must not, come at the expense of effective conservation and management programs that prevent fish, wildlife, and their habitats from becoming at risk in the first place.

That was the overarching message and concern the Ontario Federation of Anglers and Hunters expressed about Bill C-5, the Species at Risk Act, back in 2002. We warned the government of the day that Bill C-5, SARA then, would first create, through legislation, an expensive and reactive bureaucracy that would ultimately not be very effective at recovering most species at risk, and, second, would result in too many resources being directed to the service of this new species at risk bureaucracy to the detriment of existing federal fish and wildlife management and conservation programs that prevent species from becoming at risk in the first instance.

Now, eight years later, the OFAH takes no consolation in looking back and saying, “We told them so.” The SARA track record since 2002 speaks volumes, and we've documented that record for you.

Now, eight years later, we remain very concerned that other fish and wildlife management, conservation, enforcement, and habitat protection programs have suffered because of the increasing fiscal and human resource costs of this growing SARA bureaucracy.

Three years after implementation, the federal government allocated an additional $110 million for SARA implementation. In Ontario we've experienced an 80% reduction in the number of federal fisheries officers stationed in Ontario since 2006. We're also aware that the migratory game bird assessment monitoring and management programs of the Canadian Wildlife Service of Environment Canada have been cut because of the shifting of resources to the SARA program--robbing Peter to pay Paul.

The likelihood that limited resources and staff are being taken away from practical, on-the-ground ecosystem monitoring and conservation management to serve a reactive SARA paper exercise is most alarming to us. We only need to look at the longer record of the United States Endangered Species Act and associated programming to predict how ineffective and expensive the reactive single species protection model can become. Again, I urge you to particularly visit the website that provides the documentation in the next page or so of our submission to show just how expensive and ineffectual species recovery as a result of federal legislation in the United States has been over the last 33 years.

On the home front here, in 2006, Stratos presented an independent SARA audit. At the time, when we reviewed the results of the Stratos audit, quite frankly, we agreed with many of the observations and recommendations therein, and we urge this committee to revisit that Stratos report.

In fact, it forms the basis of the nine recommendations that the Ontario Federation of Anglers and Hunters brings forward to your committee. They are resource community involvement. You've heard the first speaker this afternoon refer to the importance of integrating and incorporating aboriginal traditional knowledge. In the same way, the community knowledge that resides with those who have a vested interest in the sustainable harvest of a species and/or the stewardship of habitat affected by a proposed species must be afforded reasonable opportunities to provide input into COSEWIC's species assessments, socio-economic regulatory impact assessments, and any subsequent recovery and policy development.

Under the category of assessment and listing, we have three recommendations for you. COSEWIC assessment criteria should be reviewed and amended where it does not make it clear that where there's insufficient science to accurately assess the status of a species, species should not be assessed as endangered or threatened, but rather the data-deficient category would be the most appropriate classification.

In the face of scientific uncertainty about species, it's critically important, both for accountability and relevant socio-economic conditions, that the minister retains the authority to accept or reject the COSEWIC listing recommendations. That ministerial discretion, in our view, remains important. We would of course point out the fact that the minister has accepted 449 of 551 listing recommendations--that is some 81%--which indicates to us a respect by the minister for those COSEWIC assessments.

Geographical assessments and designations at lower than the species level should be strongly discouraged in COSEWIC assessment criteria. Unless there is strong genetic evidence of geographical sub-speciation, designation of eco-types or local populations should not be proposed or accepted. On the other hand, we do recognize the value of de-listing species at a geographical level, and we would could certainly recommend that become policy.

In terms of recovery strategies themselves, we have a couple of recommendations for you. For species that could impact resource users, the OFAH strongly recommends that recovery strategy teams include non-government representatives with expertise on the sustainable management, use, and recovery of such species and/or their habitats.

We also recommend development of policies and guidelines for recovery strategy team composition, stakeholder involvement, threat assessment, and population objective setting to help ensure more consistent development of effective recovery strategies.

We also recommend the development of appropriate criteria and an effective framework for assessing the socio-economic impact of species listing and recovery planning. Regulatory impact statements should include sound socio-economic analysis, including potential costs incurred by regulators, by those being regulated, and the conservation cost-benefit for the species at hand.

We also seek increases in efficiencies from SARA, not costs. Our second to last recommendation to you is that the OFAH recommends against feeding SARA's growing appetite for more funding and human resources. Rather, large cost savings and greater efficiency would be realized if Environment Canada were more serious about harmonizing provincial and federal species at risk efforts, which, for example, in Ontario are often redundant, inconsistent, and confusing to both agencies and the public.

Thank you very much.

[The Chair, Conservative, James Bezan]

Thank you, Mr. Quinney.

Our final presentation before we go to our questions is by Dr. Whoriskey in Saint Andrews.

You have the floor.

[Dr. Frederick Whoriskey]

Thank you very much.

I am a research scientist pinch-hitting for the president of the organization, who could not be here today.

The nature of our testimony is really about our experience of life under SARA. A subpopulation of the Atlantic salmon was the first group of marine fish to be listed there. So that is the spirit in which I deliver my comments here today, on behalf of the Atlantic Salmon Federation.

The Atlantic Salmon Federation is an international, non-profit organization headquartered in St. Andrews, New Brunswick, with regional offices in Quebec, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador. We also have offices in the northeastern United States.

We are dedicated to the conservation and restoration of wild Atlantic salmon and the river and marine ecosystems on which their survival depends.

We work closely with seven regional councils and 120 volunteer river organizations that are our grassroots in eastern Canada and the northeastern United States. This network covers the freshwater range of wild Atlantic salmon in North America.

In carrying out our programs, we use scientific research, advocacy, and public awareness.

As I mentioned, I believe Atlantic salmon was the first marine species to be listed under SARA, and those were the inner Bay of Fundy Atlantic salmon populations. We are very concerned that without urgent action the wild Atlantic salmon populations of the approximately 32 inner Bay of Fundy rivers that have been listed under SARA will become extinct.

The range of the inner Bay of Fundy salmon includes all rivers draining into the Bay of Fundy from the Mispec River in New Brunswick, which is east of the Saint John River, around the bay to the Pereaux River in Nova Scotia, which is east of the Annapolis River. It is estimated that when populations were healthy in these rivers, more than 40,000 Atlantic salmon returned each year. A precipitous decline began in the late 1980s in these returns, so that by 1998 the wild salmon population was estimated to be fewer than 500, and now fewer than 200 return annually.

These salmon remain largely within the Bay of Fundy and in the adjacent water of the Gulf of Maine throughout their life at sea. This is unusual for Atlantic salmon, which typically range great distances in the North Atlantic. Many go as far as Labrador or Greenland.

While freshwater issues such as logging practices, agricultural runoff, building of the massive Petitcodiac tidal barrier--the gates of which were recently opened by the Province of New Brunswick--and smaller dams played a part in the declines historically, it appears the major critical problem now is at-sea survival. Theories on the mortality at sea have ranged from declining food supply to modification of environmental conditions; impacts from salmon farming that include disease transfer and increased infestations of sea lice; increased predation by seals, cormorants, and other predators; and changes in salmon behaviour due to declining numbers. Perhaps some combination of all these act together.

During the time that wild Atlantic salmon began their decline in the Bay of Fundy, the aquaculture industry was growing quickly, with very little regulation and enforcement in place. There was little monitoring of the effects of sea lice and other impacts on wild juvenile salmon, called smolts, as they made their way out to the ocean. We acknowledge that steps have been taken to improve the operational practices in this industry, but we remain concerned about the potential ill-effects of interaction between wild and farmed Atlantic salmon. With the growing resistance in our region of farmed Atlantic salmon to sea lice treatments in recent months, this threat to wild salmon must be monitored and appropriate action taken as needed.

The draft recovery document for the inner Bay of Fundy salmon complex states very clearly that the problems with the inner Bay of Fundy salmon populations are in the marine environment. We have a major knowledge gap about the marine life of inner Bay of Fundy salmon, but there is little in this document to reflect plans for work in this area. The report states that major marine mortality occurs during the post-smolt stage--this is shortly after they enter the sea for the first time as juvenile fish--but there is no committed research in this document on that phase of the salmon’s life cycle.

Salmon from inner Bay of Fundy rivers are being held or “gene-banked” at three locations, all operated by the Department of Fisheries and Oceans, to ensure that genetic material is available for restoration efforts; however, there is no dedicated long-term funding for these operations.

The Committee on the Status of Endangered Wildlife in Canada has indicated these populations were endangered in 2001, and they were listed under the Species at Risk Act in 2003.

It took until December 2009 for Fisheries and Oceans Canada to issue a draft recovery plan to which the public was invited to provide input. Once the recovery plan is approved, DFO expects it to take another four years to develop and finalize action plans. This is a very, very long time, an unacceptably long time, to bring these actions to bear.

The Atlantic Salmon Federation and our regional councils recommend that DFO expedite the process to develop the required action plans to achieve the recovery goals and objectives identified in the recovery strategy. In addition, we recommend that DFO dedicate and provide the additional funding that's needed to carry out the recovery strategy and confirm the importance of the live gene bank program to recovery by including it in the department's annual A-base budget.

We recommend that marine critical habitat work become a priority and that the required resources be directed at this work, particularly regarding the post-smolts in the ocean, in order to give the recovery the greatest chance of success.

Thank you very much for this opportunity to speak with you.

[The Chair, Conservative, James Bezan]

Thank you very much. We're going to open up our seven-minute round.

Mr. Scarpaleggia, you have the floor.

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

Thank you, Chair. This has been a very interesting set of testimonies.

Mr. Quinney, I was really intrigued by your testimony. If I understand correctly, you're speaking against the kind of formalized approach to protecting endangered species that is expressed through legislation such as SARA, and you're suggesting that your group is better placed to do much of SARA's work.

Do I understand correctly? I wasn't sure I followed the thread of the argument.

How big is your organization? What area does it cover? How does it contribute to saving wildlife, which you said it does very effectively without the bureaucracy that flows from legislation such as SARA?

[Dr. Terry Quinney]

Thank you for the question. Yes, you understand our submission.

Our submission is fundamentally that, 10 years ago, Canada chose to follow the existing American model, which is really a litigious, highly bureaucratic model. We believed, based on the track record of the United States of America at that time, that would be mistake for Canada.

Since that time, not only has the federal SARA record, we believe, proven us correct, but so has the most recent Ontario species at risk legislation, because it, too, basically uses now the Canadian federal and the American model, which is, first, a very strong legislative hammer, so to speak, instead of a cooperative stewardship approach; and secondly, the creation of a brand new institutionalized and clearly huge bureaucracy, the end result of which is seldom the actual on-the-ground recovery of species.

I think it's fair to say that there are alternative models, not only in Ontario and not only those demonstrated by my organization in cooperation with other organizations, including both the federal and provincial governments.

The point is cooperation, stewardship, and partnership first, not the legislative hammer and not an insatiable bureaucratic appetite for more resources that do not result in the on-the-ground successful recovery of species.

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

Your brief is very good, but it's also a little abstract for someone like me who is not an expert in these issues. So could you give me an example of where the federal hammer has been used, and how your organization's approach would have been more supple and would have brought about better results? What reverberates with me in your message is that the traditional complaint from, for example, fishers in Newfoundland at the time the cod was undergoing a threat was that the biologists at DFO in Ottawa didn't know what they were doing and were mismanaging the fish stocks. So could you give me an example in your experience of where the federal hammer has been used and it's been counterproductive? And how would you have done things differently?

Your organization...again, I asked the question at the beginning. What sort of territory does it cover? Are there other organizations like yours that would complete the map of Canada, if you will? I'm sure you do excellent work, but whenever you're dealing with a territory as big as Canada, you need to bring some kind of rationality to bear, especially if you're going to have any kind of accountability at the government level. Your approach seems to be very much an on-the-ground laissez-faire approach. I'm not saying you're not successful, but we need to look at this in a comprehensive, rational way, or there's no accountability to Parliament.

[Dr. Terry Quinney]

Thank you.

Firstly, geographically, the Ontario Federation of Anglers and Hunters has dues-paying members in all corners, so to speak, of Ontario--in other words, right across the province. I mentioned 100,000 members, subscribers, supporters. We have approximately 85,000 dues-paying members.

Among our greatest strengths is that we have over 600 member, community-based, conservation clubs. Those community-based conservation clubs continue to devote volunteer time and their own money to conduct hands-on, “get your feet wet and your hands dirty” projects in their backyard right across the province. I think it's fair to say that both the provincial government and the federal government have learned that those community-based volunteer clubs are a tremendous asset to the protection of habitats and species, just generally speaking.

In the case of specific examples, in the interests of time, I'll list you several--

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

One or two would be fine.

[Dr. Terry Quinney]

--bad experiences we've had with reference to endangered species legislation, both provincially and federally in the province of Ontario, and they include species such as lake sturgeon, bobwhite quail, snapping turtle, and, unfortunately, the American eel.

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

What happened in those cases? What did the federal government do that got in the way of your interests?

[Dr. Terry Quinney]

They are diverting our time and resources, we think, from more productive avenues of restoration.

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

What does that mean?

[The Chair, Conservative, James Bezan]

Time has expired. Thank you, Mr. Quinney.

Monsieur Bigras, sept minutes, s'il vous plaît.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chair.

Thank you to our witnesses. This is proving to be a very interesting meeting.

My questions will focus on two areas. My first question is for Mr. D'Eça. The second will be for the Vice-President of the Atlantic Salmon Federation.

If we go by what the scientists told us yesterday or the day before that, there seems to be a problem with species. The problem is mainly biological in nature. The scientists who testified were fairly clear about that.

We are not going to get very far with applying the legislation in the case of Nunavut. From the outset, one of the problems with species listing is the whole decision-making process. Of course, you have a land claims agreement that I feel is strong, and maybe even stronger than any other protocol signed a few years ago.

It's clear in your minds that the land claims agreement supercedes the act and takes precedence in the decision-making process. You are hoping that the provisions of the land claims agreement respecting the decision-making process and species listing will apply and take precedence over any action officials might take. I understand that you signed a protocol further to a working group's recommendations. However, this does not appear to have produced any results.

Is it your opinion that under the land claims agreement, the provisions of the Species at Risk Act must apply as per the discussions that have taken place in recent years? The protocol signed with the government does not appear to have produced much in the way of results. Which of the two documents has precedence, legislation that you might enact, or the statute enacted by Canada's Parliament?

[Michael d'Eça]

Merci, Monsieur Bigras.

First of all, the protocol I think you're referring to is a memorandum of understanding. It was signed a couple of years ago. Actually, both government and the NWMB would say that it has been very successful. It actually flows into your other question about whether the land claim comes first and what happens about the Species at Risk Act.

If there's a conflict between a constitutionally protected document and a statute, a regulation, or a policy, the law is clear: the constitutionally protected document must prevail. But that's only when there's a conflict. There should not be a conflict between the Nunavut Lands Claims Agreement and the Species at Risk Act. In many instances, there isn't. We mentioned one today, and we have a straightforward recommendation to address that. But that one conflict that we do have, we addressed through the memorandum of understanding. As I say, it helps to blend the listing process under SARA with COSEWIC, the minister, the Governor in Council, and the decision-making process under the Nunavut Land Claims Agreement. It has been quite successful in doing that, but it's not a legal document.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I see. However, you state on page 5 of your submission that the MOU “ does not solve the underlying problem of SARA's failure to properly recognize the decision-making jurisdiction of the NWMB and the significance of the NLCA Article 5 decision-making process“. My understanding of the situation is that while discussions may have taken place, there continues to be problem.

When the federal government and NWMB have discussions, are they viewed as government-to-government discussions?

[Michael d'Eça]

First of all, the discussions for the development of the memorandum of understanding were between the NWMB, the Department of Fisheries and Oceans, and Environment Canada. Included in our discussions was the Government of Nunavut and the main Inuit party to our land claims agreement, Nunavut Tunngavik. There were a number of parties in the discussions. The parties that signed the MOU were DFO and Environment Canada representing the crown and the NWMB in its own right.

Again, what I want to underline is that the MOU actually works well, but it only goes so far. With the MOU, some of the opening language says it is not a contract, it is not legally binding; it's a memorandum of understanding. So the parties have worked well with it, and we're not complaining about the MOU at all. What we're saying is the act itself is still not in line. It doesn't line up properly with the land claims agreement.

We have an opportunity. This is an example of why you would have a parliamentary review. After five years you see that the land claim and the statute don't line up properly; therefore, you make appropriate revisions to the Species at Risk Act.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

The committee heard testimony from the National Aboriginal Council on Species at Risk, or NACOSAR. It seems that the Council is experiencing a few problems.

When you wish to make recommendations to the government, do you go through NACOSAR, or to you deal directly with the appropriate minister? How would you describe your relationship with NACOSAR?

[Michael d'Eça]

The NWMB is actually an administrative tribunal. It's a regulatory agency, like the National Energy Board or the CRTC, or all those administrative boards that we're all familiar with. So it is not an aboriginal organization, but it's established under a land claims agreement and much of its public is aboriginal, the Inuit people. So the NWMB plays the same role as another administrative agency.

It's arm's length from Inuit, from the National Aboriginal Council on Species at Risk, from Environment Canada, and so on. It operates under the terms of administrative law and the land claims agreement, but it's an independent institution of public government.