Mr. Speaker, I rise today to speak to third reading of Bill C-5, the government's endangered species legislation or, I should say, the latest version of it since we all know it has been underway since 1993.
This should be a positive day for people concerned with environmental issues because action to protect species at risk and their habitats is long overdue. However I cannot celebrate this bill. I would like to but I cannot. It contains so many glaring faults and fundamental mistakes that it would be unworkable. It would do precious little to help protect Canada's invaluable biological diversity.
Because the government did not give serious consideration to our amendments, I regret to say that we in the Canadian Alliance will be strongly opposing the bill. We tried to produce species at risk legislation that would work but the government has reversed the hard work of the committee. We must therefore oppose the bill. The Canadian Alliance wants species at risk legislation but it wants legislation that will work. The Alliance Party's 2002 policy declaration states:
We are committed to protecting and preserving Canada’s natural environment and endangered species, and to sustainable development of our abundant natural resources for the use of current and future generations.
The need is great. It is estimated that worldwide two to three species go extinct per hour almost entirely due to human causes. Some scientists believe we could lose 25% of the earth's species in the next 30 years at the present rate.
Canada has a serious endangered species problem. Some 27 species have gone extinct in Canada in the last 150 years and more than 300 are at risk. Some of our best known and loved neighbours who share the land such as the grizzly bear, beluga whale or woodland caribou could be lost to future generations unless we take action now.
Biological diversity is to be cherished. The wide range of species the world over provides a living laboratory for the development of new drugs and medicines. Endangered species are an important early warning system of ecological trouble. Protecting wild species protects billions of dollars in wildlife related activities across Canada and the livelihoods of countless Canadians. We know all this. The Canadian Alliance has done its part in trying to make strong, responsible endangered species legislation a reality.
I will take a moment to commend my hon. colleagues on the environment committee. Over the last year or so the committee has been a model of how the House works at its best. It has been a forum for reflection, discussion and an honest search for the best way forward. Some very constructive proposals have come out of it. There has been, in my experience at least, unprecedented co-operation at the committee between members of all parties. There has been a lot of negotiation and compromise. I have not seen such a level of co-operation since I was elected in 1993. Even the whips could not whip their members into changing their positions. However the government has reversed all that.
Bill C-5 has witnessed remarkable partnerships among groups outside parliament. People have managed to put aside their usual perspectives and work co-operatively in the cause of protecting endangered species. One of the best examples has been the Species at Risk Working Group or SARWG. How often have the Sierra Club, Canadian Wildlife Federation and Canadian Nature Federation had common cause with the pulp and paper industry, mining industry and so on? The fact that SARWG's members could agree on so much made their common position all the more compelling.
Had the government accepted more of SARWG's advice the bill would be far stronger today and might make a real difference. Instead the government has said “Trust us, we will fix it later”. I am sad to say this is how the Liberal government deals with things.
Despite all the goodwill and the extraordinary degree of consensus among industry and environmental commentators, Bill C-5 as amended would not go far enough. It would not pass the test of workability. When I read the amendments at report stage I was sad to see the government had undone many of the constructive changes that had been made. That is sad because we all want a workable law that will make a difference.
What is the problem? I will quote some fine words from the minister's appearance before the committee on October 3 of last year. He stated:
The front-line soldier of the campaign for endangered species will be the fisherman, the farmer, the person who works in the woods, or the trapper, to name only a few. These are the people who are out there where the habitat is and the endangered species are. If we want to succeed in the protection of habitat for species at risk, we need to maintain the support and cooperation of Canadians who work and live on the land and on our waters of Canada. And that is where the action is needed.
Truer words were never spoken, but perhaps the minister should introduce his speech writer to his legislative drafter. Bill C-5 would fail because it ignores the concerns, I would even say the fears, of those frontline soldiers. The minister is ignoring their concerns. He is refusing to commit that if and when they suffered economic losses because of the need to protect endangered species they would not have to carry the cross alone but would receive compensation. The minister is ignoring them by holding over their heads the threat of harsh criminal sanctions for unintentional or inadvertent actions.
As a strict matter of public policy the bill is wrong on these counts, but in terms of communications it could hardly be worse. It would send the signal that the real life concerns of these frontline soldiers were not significant. It would make them feel like targets of the government rather than partners in helping endangered species.
Finally, the bill would demean and insult 10 other frontline soldiers in the battle to save endangered species: the provinces of Canada. The minister can talk all he wants about co-operation, but at the end of the day he says he would decide whether the provinces were doing a good job of protecting endangered species and whether the federal law would apply in each province. There would be no negotiations or criteria, only uncertainty and resentment.
In the end Bill C-5 is a bad bill. It would not come to grips with the real lives of Canadians who want to do their part to protect wildlife and endangered species, Canadians who want to be responsible stewards of the natural environment but do not like being threatened or demeaned.
Sadly, in this respect Bill C-5 is part of a trend in the Liberal government's relationship with rural and northern Canada: the long gun registry which has ignored the realities of life outside our nation's cities; the cruelty to animals act which would criminalize run of the mill animal husbandry practices; and the Kyoto accord which threatens to impose significant costs on rural energy users. It is sad to say, but the message must get through to the Liberal government.
The minister's frontline soldiers throughout rural Canada too often feel their way of life is what is endangered. They care about wildlife. They are not selfish. They are responsible people who want to protect the environment and had been doing so for generations before the government decided to intervene. An approach based on partnership rather than confrontation would be met with a lot more success.
The biggest flaw in the species at risk act, the thing that guarantees it would never be effective, is its failure to provide compensation to landowners who would suffer economic losses as a result of measures to protect species and their habitats. The word compensation sounds so grasping, selfish and un-Canadian. Why would people expect to be paid for obeying the law? Why should property owners not be willing to absorb the costs in the service of a greater social good?
When people's livelihoods are at stake they have a different view of things. Farmers might have to leave certain sections of land untouched for a number of years or adopt different practices to accommodate nesting birds. Maybe areas of a forest would be off limits during migration. There are lots of ways property owners and resource users could be affected, some temporary and some permanent. However in many cases they would face costs either in the form of lost income from not being able to use their land or actual costs for protecting habitat or providing for endangered species.
It is completely incorrect to think farmers are sitting there waiting for the government to put compensation in the bill so they can sell their land to the government and make a big profit. Listening to the minister talk about how compensation would prevent voluntary programs, one would think this was what he believed.
For the farmers and ranchers I know their land is their life. Often it has been in their families for generations and they are not looking for an easy way out or to sell it to the government. They respect the wildlife on their property and would be happy to work co-operatively in voluntary stewardship programs, but when costs arise they do not want to be left holding the bag alone. Ten per cent could easily put them out of business.
No doubt the minister will say that the bill recognizes the principle of compensation. Let us look at the bill. Yes, it does say that the minister may, and I emphasize may, provide compensation. That is good. The government even seems willing to retain the words of the committee, “fair and reasonable” compensation, but that is not fair market value. However, in Bill C-5 any compensation would be left entirely to the minister's discretion. For the farmers in my riding, fine words are hollow promises. Until property owners and resource users know that when they suffer losses they will be guaranteed compensation, not by the minister's good grace but by right, they will look at the species at risk act with one hand guarding their wallets.
It would have been a token of good faith had the minister tabled draft regulations for us to look at prior to the bill being passed. He has promised to have a draft ready soon after royal assent, but again that does not do anything to convince people that the act will be fair to them.
What can they expect? What in practice does the bill mean when it says there will be compensation only in the case of the “extraordinary” impact of regulatory restrictions? Can they trust that the process would be fair? The minister owes Canadians answers to questions like this.
In fact, the only public picture of what regulations might look like is the Pearse report. Dr. Pearse may be a noted natural resources economist, but when he says that landowners should be happy to lose up to 10% of their annual income without compensation in order to protect endangered species, property owners get worried. When he says they should get a maximum of 50% compensation for losses over 10%, they stay worried.
It is not because the minister's “frontline soldiers” are selfish but because, like many Canadians, they work hard for a living and want to be treated fairly. Fairness demands that when they are injuriously affected by government they receive something to help them out. This is the very principle embodied in the UN convention on biological diversity, which Canada has signed.
The convention recognizes that because the objective of maintaining bio- and ecosystem diversity is so important, costs must be equitably borne by everyone, not just primarily by developing countries. Applied at home, this principle would mean that landowners should not bear all the costs of species protection, and that since they are helping to achieve a greater social good, compensation should be extended to offset any losses that they might incur.
The species at risk working group also recognized this in their brief to the standing committee. The group wrote:
SARWG strongly urges Parliament to implement key amendments that firmly recognize that the protection of species at risk is a public value and that measures to protect species at risk should be equitably shared and not unfairly borne by any individual, group of landowners, workers, communities or organizations...Provision for compensation helps to balance the effect of efforts to protect species at risk and instills necessary trust among all stakeholders...The Act should specifically allow for compensation for unavoidable losses caused by the inability to carry on an activity that is authorized by a legal contract or licence.
If a committee of industry and environmental groups can recognize this, then why can the government not? The principle of compensation is recognized internationally too. Let me quote from threatened species legislation in Tasmania:
A landholder...is entitled to compensation for financial loss suffered as a natural direct and reasonable consequence of the making of an interim conservation order.
That is, there is compensation for an interim protection order or a land management agreement.
The legislation also states: “A person who is required to comply with a notice under section 36 is entitled to compensation for financial loss” as a result of “being required to comply with that notice”.
Within the European Community, landowners receive compensation if they agree via a management agreement to maintain features of the landscape. Switzerland runs the integrated production program, a voluntary scheme whereby farmers are given standard amounts based on profit forgone in return for agreeing to certain restrictions. The U.K.'s conservation program of 1994 states:
Where a special nature conservation order is made, the appropriate nature conservation body shall pay compensation to any person having at the time of the making of the order an interest in land comprised in an agricultural unit comprising land to which the order relates who...shows that the value of his interest is less than it would have been if the order had not been made.
Not only is it fair, but the prospect of paying compensation introduces important fiscal discipline for the government. Instead, the government has taken the U.S. example of no compensation. I take the minister at his word and so I know that at the moment the government really has no idea of what the implications of the bill are or what it will cost Canadians to comply. Here is what he told the committee on October 3 when asked about compensation:
I have to express my regret that I'm not able to give the precision you have asked for. I think, though, your request for precision is perfectly legitimate. I really would like to be able to give it. Unfortunately, it simply has proved to be one of those things that has escaped us.
In reality, there is a letter from a cabinet minister to another cabinet minister saying that there can be no compensation in the bill, and nothing has been allocated. A departmental information supplement distributed in October was not of much more help when it stated:
Environment Canada is aware that compensation for restrictions on the use of land is a complex issue that requires careful consideration and innovative thinking. We will need several years of practical experience in implementing the stewardship and recovery provisions...before we can be precise in prescribing eligibility and thresholds for compensation.
In other words, it is “trust us”. I guess it is easy to be this flippant when spending someone else's money. The government does not know what the economic implications will be of the legislation it is passing. The act would put a potential burden on countless property owners and users across the country. The minister is advised to have a better answer for them when they start asking why all the costs of this noble effort seem to be on their shoulders.
In the end, the best argument in favour of compensation is that it is best for endangered species themselves. Without some recognition of their costs and corporate willingness to assist, property owners and users end up in an adversarial relationship with endangered species when naturally they are their best defenders.
The wolves in Yellowstone National Park are a great example of how this works in practice. When ecologists reintroduced wolves in the park they naturally received a hostile reaction from local ranchers who rightly were afraid that wolves would prey upon their livestock. Why, they asked, should they have to pay the cost of wolf introduction? According to Hank Fischer, northern Rockies representative of the Defenders of Wildlife, the controversy was resolved by starting a non-governmental compensation fund for ranchers, which paid a flat fee for each head of livestock killed by wolves. Now, five years later, the wolf population is growing and farmers have for the most part learned to live with it since they know that their families' prosperity is not being sacrificed. As Mr. Fischer writes, “This program is about a lot more than money. It's about respecting what ranchers do”.
Maybe that is the key point. Landowners are more than willing to do their part, but they need to know that the government understands their situation and cares about what happens to them. If the government cannot even provide some measure of compensation for their losses then they will be far less willing to co-operate on a voluntary basis. Coercion will be the government's only option, which will only increase resentment and suspicion. If property owners are upset about being asked to carry all the costs of protecting endangered species with no guarantee of assistance in doing so, they should be equally concerned about the harsh criminal sanctions that the government is using to make sure they co-operate.
Bill C-5 makes it a criminal act to kill, harm or harass any one of hundreds of endangered species or to interfere with their critical habitat. Fines are steep, up to $1 million for a corporation and $250,000 for an individual. The bill provides for imprisonment for up to five years for an indictable offence. As far as I am concerned that punishment is too good for people who wilfully threaten endangered species, people such as poachers, those who traffic in endangered animals or hunters looking for a thrill, but let us look at the bill.
The bill states:
No person shall kill, harm, harass, capture or take an individual of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species--
Similarly, it states:
No person shall damage or destroy the residence--
of that species, or:
No person shall destroy any part of the critical habitat of a listed endangered species--
Protecting species and their residences and habitat is what the bill is all about and we support that. My concern is that the act would have the great potential to catch honest people in its net, people who have no intention to harm endangered species, let alone commit a criminal offence. Under this act someone could commit a criminal offence, not a misdemeanor or administrative violation but a criminal offence, without knowing it. The bill does not require intent or even reckless behaviour. Rather, all offences under the act would be strict liability offences which means that the burden of proof rests on the individual to prove that he or she was exercising due diligence should harm come to an endangered species.
Is it fair to convict someone of a serious criminal offence when they might have had no idea that they were endangering a species or its habitat? In order to protect oneself from breaking the law, one would have to become an expert on recognizing the sage grouse, the barn owl, the Aurora trout, the Atlantic salmon, the prairie lupine and the American water willow, et cetera. One would have to be able to recognize not only them but their critical habitat in case one disturbs a place where some of these animals spend part of their life cycle, or even where they used to live or might be reintroduced, or some pollen or seeds blew in. I dare say the minister knows that this is a true problem.
In October he spoke to the committee about making people criminals even when they do not know they are breaking the law. He had a lot of concerns. He said:
It's a legitimate matter for concern. The accident, the unwitting destruction—it is a concern, and we want to give the maximum protection we can to the legitimate and honest person who makes a mistake, who unwittingly does that.
That is a nice thought, but that is all it is.
What is this maximum protection that he talked about? There is no protection that I can see. Protecting endangered species is important and we take it seriously, but it cannot be done in a heavy-handed way. People want to co-operate, but this “gotcha” approach from the government is adversarial and does nothing to encourage co-operation. A person might not know he or she was harming an endangered species, but “gotcha”. All they can hope is that the minister is reasonable in exercising his discretion. “Trust me” he says. That is not good enough.
How are companies, for example those involved with mineral, oil or forestry, supposed to demonstrate due diligence over operations covering hundreds of thousands or even millions of hectares when they do not even control all the external factors involved? There are 70 million hectares of agricultural land and 25 million hectares of privately owned forest land in Canada. How do these farmers and operators exercise due diligence over these areas, especially when many are small operators with very limited resources and no familiarity with endangered species?
What maximum protection would the minister provide to them? At the very least, the government must work with the provinces to provide training for landowners and users who will be required to meet the due diligence standards but do not have the knowledge or information to identify listed species or their critical habitat and residences.
As the species at risk working group said:
Failure to make such programs readily available will deprive Canadians of the means to defend themselves against criminal charges.
The best solution would be for the government to amend the bill to require what Roman law used to refer to as the guilty mind, mens rea. This required that in order to commit a criminal act persons had to know that they were doing something wrong. It has been the standard division between criminal and civil offences in English common law since the late Middle Ages and is absolutely essential in this case. The bill should require that criminal sanctions apply only when someone knowingly, intentionally, wilfully or even recklessly harms an endangered species, its residence or its habitat.
Why make this change? Do the strong penalties not send a signal that endangered species are important and that no one should mess with them? Yes, it does that but that is the wrong signal for farmers, cattlemen, fishermen, forestry workers, property owners and users across the country.
The minister does not seem to understand the implication of his own words when he calls these people his frontline soldiers in the campaign for endangered species. Property owners are the good guys here yet the bill treats them as if they have to be beaten into submission and threatened to keep them from harming wildlife. Let me quote the minister once more:
Now we have all seen, as politicians, what happens when people get fearful or angry with their government. We have all seen the damage that is done to public trust when perfectly reasonable people suddenly decide that the government has some hidden and nefarious agenda, and there is no reason to stir up those kinds of concerns with this legislation.
The minister's speech writer is absolutely correct. There is no reason for this to happen but it is because Bill C-5 treats property owners in a spirit of confrontation and antagonism. If the government is willing to brand people as criminals for an entirely inadvertent act, then people will question the government's commitment to its rhetoric about co-operation.
As I said earlier, the bill also insults and demeans another group of frontline soldiers in the battle to protect endangered species. Those soldiers are the provincial governments. I know it is not fashionable to defend the provinces in this place. The government obviously believes, and it may even be true, that Canadians generally do not care who delivers a service or takes responsibility for an issue, they just want it done. We want to see endangered species protected, but even if people do not widely care about constitutional niceties, it is vital that governments respect them. Perhaps the government can get away with encroaching on provincial jurisdiction in the court of public opinion. In the only survey I have seen, 94% of Canadians say that they want to protect endangered species. I cannot believe it is not 100%. However, if it tries to go it alone, the government will produce bad policy, bad legislation and will end up hurting rather than helping the cause of species protection, which it seeks to advance.
I do not want to pretend that the federal government has no jurisdiction at all in getting involved in environmental issues and protecting endangered species. Environment, after all, does not fall exclusively into either federal or provincial jurisdiction.
Fathers of Confederation thought far more about regulating trade, commerce, education and even how to divide up the colony's debts than they did about protecting endangered species, but the federal government clearly has a role to play.
Section 91 of the constitution gives the federal government power in the areas of international treaties, Indians and land reserved for Indians, sea coast and inland fisheries. One could even, I suppose, make a case that the power to guarantee peace, order and good governance allows the federal government an entry here, though that is sufficiently ill-defined as a justification. I am sure it will be fought out in the courts.
Perhaps the best justification for the federal role is responsibility for the criminal law. This power to prohibit and punish any conduct clearly would extend to protecting endangered species, though I cannot help but wonder whether the harsh criminal provisions in the bill and the refusal to require that someone have criminal intent exists more because they strengthen the federal government's self-jurisdiction for involvement than because of how effective they will be.
The provinces have a role to play because the constitution gives them power over: the management and sale of public lands belonging to the province; property and civil rights; and matters of merely local or private nature in the province. Together these amount to vast responsibilities. The provinces are the ones with the troops on the ground, with the power to really enforce the provisions of the act. They have a presence to enforce natural resources and wildlife rules that extend widely across the nation.
Apart from the jurisdictional question, without the provinces the bill simply cannot be enforced. It is essential for the minister to make sure he has the provinces on side or his best laid plans will not have their desired effect.
Does the bill reflect the co-operation and consensus building that one would expect, given that environmental questions are a shared responsibility? Sadly, the answer is a strong no. The bill talks about co-operation, voluntary programs and consultation but when it comes right down to it, Bill C-5 gives the federal government the power to impose its will on provincial lands with disregard for provincial rules or practices.
This is the concept of the safety net. Largely through use of federal criminal law power, Bill C-5 gives the minister, in his absolute discretion, the right to decide whether a province provides effective protection for endangered species. If not, then he must order that the federal law will apply in every province. In this way he is given the power to sit as lord and judge over the provinces.
The standing committee insisted that the minister be required to make his reasons public. Most important, the committee required that the minister consult with the provinces in order to develop criteria for determining what constitutes effective protection of species at risk throughout Canada. However the government introduced motions to reverse these provisions.
We are left with a situation where provinces, landowners and resource users will try to arrange their affairs to comply with the law in good faith but with utter uncertainty about what the law will be. That is where the money will be used, in litigation. How are companies expected to invest or individuals develop their land if they do not know what the rules will be? This uncertainty leads to confusion and distrust. This federal intrusion will almost certainly lead to legal challenges from the provinces instead of focus on protection of species at risk.
Undoubtedly, provinces will challenge these provisions in court. Not only will this take time and resources, it will undermine collective efforts to protect species and show the world that Canada is not serious in its commitment to co-operate in meeting this important goal.
Of course all this talk of the federal safety net assumes that there are big gaps in the provincial legislation. It implies that the provinces have done nothing about endangered species protection and cannot be trusted with the job.
As I have said, I believe there is a role for the federal government here but this white knight attitude, which puts down everyone else so it can pretend to be the champion, only creates bitterness and sets back the cause of species protection.
I have been told that there are 33 provincial statutes that cover endangered species, wildlife, special places protection, environmental management and so on. They exist in every province and territory. I do not claim to be an expert on all of these but a background presentation by the Sierra Legal Defence Fund on Bill C-5 included a report card comparing the provinces to Bill C-33, the endangered species bill that died in the last parliament and provided the framework for this bill.
Interestingly, five provinces were ranked higher than the proposed federal law and three more provinces were given the same mark. This is a subjective assessment but at least it establishes that the provinces are doing something to help endangered species.
Instead of the government's confrontational approach, would it not be much better to work co-operatively to pursue the goals that we all endorse? The foundation for this co-operation already exists in the 1996 national accord for the protection of species at risk. The federal and provincial ministers committed themselves to complementary legislation and programs to ensure that endangered species would be protected throughout Canada and established a council of ministers to provide direction, report on progress and resolve disputes. This is the way to proceed. Perhaps it was not perfect. Certainly more work was left to do and federal legislation has a role here. Goodness knows, the federal government has enough land and responsibilities in its jurisdiction with which to concern itself without deciding to take responsibility for provincial lands too.
Again we urge the government to adopt a more co-operative approach instead of one rooted in the minister's discretion to intervene whenever he wants with no criteria and no explanation. That is not the way to build teamwork with provincial enforcement agents on the ground. It is not the way to work with landowners and resource users who need certainty and predictability in the law and, in the long run, it is not the way to help protect endangered species.
In conclusion, we want species at risk legislation but we want legislation that will work on the ground. This bill will not work. Farmers, ranchers and people in industry say it will not work. It is just like the U.S. legislation. It will end up in the courts. It does not include compensation. It does not include mens rea. It does not provide clear federal--provincial co-operation. It does not provide adequate habitat protection.
Money, as I say, will not be used for the conservation or protection of species. Instead it will go into the courtroom.
Government has used deceit and deception to convince various groups that they will be taken care of. It has used an attitude of “Trust us, we will take care of you. We will give you compensation. We will make sure that we work with you”.
I do not believe those bureaucrats who will be out there enforcing the legislation will do anything but follow the exact wording that is printed in Bill C-5. As a result, the legislation will in fact endanger endangered species.