Environment Committee on April 15th, 2010

[Julie Gelfand]

Yes, we have three members who mine bitumen: Shell, Suncor, and Syncrude. They are members of MAC.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

It sounds as though some of the members of your association have been making great efforts to move towards setting aside habitat. Are you aware of the CEMA recommendation that habitat be set aside, particularly for caribou, but that the Government of Alberta has refused? Would that be an example of a situation in which it would be important for the federal government to step in?

[Julie Gelfand]

I'm aware of CEMA. I'm not aware of their recommendation, but please repeat what you said after that. I have heard of CEMA. I know who they are.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

CEMA is an association similar to your mining association. It consists of industry, first nations, the government, and NGOs, and it recommended, through their organization, that lands be set aside for the protection of habitat. That recommendation was rejected by the Government of Alberta, so that might be an area where the federal government would have to intervene.

[Julie Gelfand]

That's possible.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I did notice, particularly from the forest products and mining associations, a number of overlapping recommendations or observations about the act that are really worthwhile for the committee. They seem to reiterate other submissions to the committee.

One is that you seem to be berating the government for the delays on recovery plans and action plans. It seems to be an ongoing complaint by all the submitters.

An interesting one is failure to promulgate the necessary regulations and policies. I really appreciate your bringing that to our attention. Obviously it's a part of the act that helps provide legal clarity for everybody.

With reference to the full funding of SARA, I wouldn't mind hearing you supplement a bit on that.

Mr. de Vries, I also noted your concern with the lack of progress on moving on the action plans and the need to refer matters to the courts. I'd appreciate hearing from both of you on that.

[Andrew de Vries]

Yes. With the implementation of SARA, some 300-odd species were instantly brought to bear for the federal government, and the staff in Environment Canada and Fisheries and Oceans have been doing an admirable job in trying to tackle that amount of paperwork. They are making progress, but it is slow.

Because of that slow pace, various elements of society get upset and target particular species, so I think we're finding is that the federal government is in a reactive role rather than a proactive one. We would like to see officials in a proactive role. We're certainly working with those officials to help bring some of these ideas forward, as you've indicated.

So I think that's really it. It's a lot of work for them to do. They are trying very hard, but it is just a massive amount of work. What we're seeing is frustration and people trying to move policies forward by litigation. We would much rather see the federal government take a proactive role by working with the provinces and territories, and our industry, and see those policies move forward more quickly.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Ms. Gelfand, before you throw in your two cents, which would be appreciated, one of the aspects you both mentioned was the lack of government support for using conservation agreements. I've discussed your proposal with a number of other presenters as well, and there seems to be a reluctance.

I actually looked at the statute to see about your proposal. The statute itself does not in any way suggest that the conservation agreements would in any way replace the legislated mechanisms. Are you suggesting that the law be changed so that you can have a binding law that could be enforced by any party, or are you suggesting conservation agreements, which of course would only be a contract model, and then only the parties to the agreement would be able to enforce those terms? I always have concerns about proposals for something outside the statute.

[Andrew de Vries]

It's a good point. We would very much like to see conservation agreements move forward as a tool, whether it's a contract or a specific in the act. I'd have to do a little bit of homework to give you a specific answer, but I think what we need to recognize is that individual groups--or companies, in the case of my industry--are already doing this work.

We're working cooperatively with the NGOs and the provinces and other industries. CEMA would be an example of that. What we're finding is there's not a place to park these agreements within SARA. We've done the work on the ground, we would like to get some recognition under the act, and we find that we can't because it doesn't fit.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Maybe it's something, Ms. Gelfand, that could be pursued in further discussions that you're tasked to look at.

[Julie Gelfand]

Absolutely. I think the fear on some people's part is that the conservation agreement would somehow mean that you're not fulfilling the protection of the species.

From my limited experience with the industry associations, I don't think that's their intent. Their intent is to continue to do the work to protect the species at risk, but to find some place to say they're already doing all this work so where do they get some form of credit for it, and can it potentially affect the permit so that they can continue to operate? I mean, you're going to continue to have a hole in the ground in Sudbury, and the peregrine falcon is going to continue to go to the cliff face, so we have to figure out a way to protect the peregrine and not create huge economic problems for the workers in Sudbury.

In the end, this comes down to a clash of values: the value that you place on the industrial activity and the value you place on the species at risk. Most people would say that there's probably a way, if we're creative, to figure out a way to do both.

[The Chair, Conservative, James Bezan]

Thank you.

The time has expired.

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

Thank you to the witnesses for being here while we do this legislative review of SARA.

It's also interesting that at this time we are looking at sustainable development. Industry cannot be successful in the long term unless it goes to the model of being sustainable, which includes the environment, the economy, and social impacts. That's the three-legged stool, so to speak. Also, the recommendations coming from science will depend on the model that is used.

Your recommendation, Mr. McGuinness, was that the model be a model that would be international, so to speak. I appreciate that input.

I'd like to focus on two things. Could you comment on when, in SARA, socio-economic considerations should be taken? For COSEWIC, my understanding is that there is no socio-economic consideration for the recommendation of a listing of a species. There is when it goes to the minister and the Governor in Council, but then, when critical habitat is identified, again there are no socio-economic considerations. Should there be? When should socio-economic considerations be considered at all levels of managing a species?

My other question is about the timeframes. Consultation is a very important part of this. Even for yourselves, in working with industry and ENGOs to come up with joint recommendations, that takes time. As a species, its listing criteria may change. What's the proper model for a timeframe with COSEWIC, with the minister and the Governor in Council, and also for the critical habitat?

Are these timeframes that we have realistic? It's been highlighted that litigation seems to be the only model or a model that's often used. Is that because the timeframes are not realistic to do proper consultation?

So my question is about the importance of socio-economic considerations and when they should be considered in managing a species and also about timeframes. Could each of you comment please?

[Patrick McGuinness]

My first comment is that in this area SARA itself is somewhat misleading, because in the Government of Canada, any time you're going to introduce a regulation, as part of that you have to take socio-economic considerations into account.

For example, in SARA, if you're going to list an endangered species, there has to be socio-economic consideration. That's the law of Canada. So you're quite right: at the time of going to the council of ministers, there has to be that socio-economic consideration.

Then, I would say, that if in fact you're going through and there's going to be a recovery program or an action plan that's going to entail some form of regulation, here again it's not a question: it must. That's basically one of the overriding rules of the Government of Canada. We went through that about 15 years ago. That's my comment there.

With respect to timeframes, I think you're right. If you look at the list of endangered species, you'll see a wide variety of flora and fauna and so forth. The consultation is basically a responsibility of government; it has to make sure there is that consultation. So I think it was a bit of a mistake to actually have a prescriptive time period. There are groups--industry groups, well-meaning bureaucrats, and very cooperative environmental groups--and the issue is to bring them together and try to move this issue forward. Having legislation that puts in a little timeframe becomes a bit of a magnet.

I remember that in one of the task forces leading up to SARA we brought up the U.S. wildlife people. They basically said not to do what they did, in the sense that all of a sudden they found it was a magnet for litigation when they did such prescriptions. They said they were spending all their money with lawyers trying to fight this off, and they had no money for recovery, no money for this. So follow that advice--except for the nine months type of restriction.

[The Chair, Conservative, James Bezan]

Briefly, Mr. de Vries or Ms. Gelfand.

[Julie Gelfand]

I don't think the timelines are particularly difficult. I think the issue with species at risk and not getting to recovery, not getting to action planning, and not getting all our policies in place is really a function of a lack of staff—a lack of staff within Environment Canada.

I think they've had a very difficult last few years. In the Government of Canada, it can take you one year to hire a biologist. Think about it: one year to hire somebody. In industry, that would never happen. They need many more people in order to help them get over that backlog of the 300 species that were first given to them. They didn't have that. That, to me, is the timeline issue.

On the socio-economic consideration, I think it is reasonable to have socio-economics come into the recovery planning and the action planning stage.

On the listing issue, if you were to forget about the Species at Risk Act—if there were no Species at Risk Act—then listing should be based purely on science. Is this species endangered or not? Do we have enough of them? Are they reproducing properly? Is it going to go off the table or not? Where I think the issue comes in is that some industrial folks feel that it becomes difficult to support that, because it becomes an automatic prohibition with SARA when listed, and that can have economic implications.

If you're thinking about sustainability and sustainable development, you want to have a functioning ecosystem in order to have a functioning economy. Species at risk are like canaries in the coal mine telling us whether the ecosystem is functioning. You sure don't want to have a lot of them going over the edge, because in essence that means the ecosystem is in trouble and your economy can be in trouble. So it's a little more difficult to deal with that issue of when to bring socio-economic considerations into listing.

[The Chair, Conservative, James Bezan]

Unfortunately, we ran out of time there. I have to be fair to all members. We are now going into our five-minute round. I'd ask our witnesses to keep their comments as brief as possible, especially as we do have a number of panellists who want to comment. Please be fair to each other and to our members as well.

Mr. Scarpaleggia, please.

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

Thank you, Mr. Chair.

I guess my first question is a bit of a naive question. It sounds to me as though the act is far from being truly implemented. You have one species that has a recovery plan, and you were saying, Ms. Gelfand, that a lot of policies haven't been properly developed yet, and so on and so forth.

So the question becomes, if the act really is not in a state of application—I'm simplifying, of course—how is it bumping up against your industries, if you understand my question? Are you just acting on your own in anticipation of it properly coming into force? Why is it such a problematic thing if the policies haven't been developed and there's not enough staff to produce recovery plans and...? I just don't understand where the friction is.

[Andrew de Vries]

Yes, absolutely we're going out ahead. Especially for my industry, we're primarily regulated by the provinces, and so we are working with the provinces and ENGOs to develop programs for species at risk, such as caribou. We are going out ahead. We don't want to be in a position five years from now where we've done a bunch of programming, we've conserved a bunch of habitat, and we've come to an agreement, only to say that's not enough, that's wrong, it's too much, or it's too little.

So what you're finding is that there's uncertainty. We can work within the provincial systems very well, as my industry does. Other industries are more directly impacted, since they're working under areas of direct federal law. Even in our industry, when we're dealing with fish or migratory birds, those are direct federal responsibilities.

We are doing work, but we find that there's no place to plug into, and then we're at risk. It's business uncertainty, and business doesn't like uncertainty.

[Julie Gelfand]

I think the other big issue is that many industries and many facilities feel that they're non-compliant. They hate that. To be non-compliant with any act is a huge no-no in this day and age. They feel as though they don't have a permit under SARA, so they're saying, “Oh my God, what does that mean?” They're saying that they're non-compliant. And that's not a good situation to be in.

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

So essentially you produce conservation plans under provincial legislation...? Now, even though they carry a different name, are they essentially the same as a recovery plan?

[Andrew de Vries]

We're trying our best to make them SARA-compliant, if you will, because there's a lack of certainty at the federal level. We're doing our best. We read the act and we try to anticipate actions that the federal government may wish us to undertake, but we're acting in a bit of a vacuum. We're doing the best we can and the provinces are doing the best they can.

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

So should the federal government do like it has done with CEPA and have a kind of equivalency agreements with the provinces? Should it say, look, we still don't have enough biologists, but you've dealt with this issue, and industry is producing proper conservation plans, so that's good enough for us? Is that sort of what you would like to see?

[Andrew de Vries]

That would be an option. We think that there are other simpler options that the federal government could undertake, but certainly—

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

Like what?