May 30, 2001
TO: THE STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT
FROM: THE SIERRA CLUB OF CANADA
Presentation by Elizabeth E. May
RE: Bill C-5, the Species At Risk Act
The Sierra Club of Canada is a national, non-profit, membership-based environmental organization with members across Canada and chapter and group offices in Victoria, Vancouver, Edmonton, Toronto and Halifax. The Sierra Club's national office is in Ottawa.
Since 1998, Sierra Club has been working collaboratively with an industry-environmental effort, the Species at Risk Working Group (SARWG). SARWG membership includes the Canadian Nature Federation, the Canadian Wildlife Federation, the Mining Association of Canada, the Forest Products Association of Canada (formerly the Canadian Pulp and Paper Association) and the Sierra Club of Canada. One of our early members was the National Agriculture Environment Committee, so the concerns of the agricultural community were included in our analysis.
As you will remember, the SARWG brief was presented on March 29, 2001, revisiting many of the points made in our brief on the previous version of the bill, C-33. Unfortunately, I was unable to appear on that date and greatly appreciate the opportunity to continue on behalf of SARWG to share our concerns about the bill.
As we have stated in previous submissions, we appreciate efforts to develop cooperative approaches to encourage responsible stewardship of species at risk. Nevertheless, there are a number of areas that merit the serious attention on the Committee and the Minister. This testimony will concentrate on those items which my colleagues only mentioned lightly in previous testimony.
1. Constitutional Questions:
SARWG has been concerned since the early days of 2000 that the proposed act is constitutionally unsound. We have received legal advice from Louis Paul Cullen of Ogilvy Renault in Montreal, Professor Wayne MacKay, constitutional law expert from Dalhousie Law School, recently appointed President of Mount Allison University, as well as having discussed the matter with Dale Gibson, who appeared before you earlier this spring on behalf of the Canadian Bar Association. None of these individuals can understand why the government has chosen such a convoluted and complex approach to legislating protection of species at risk. The approach taken in this bill has never been attempted in any other sphere of federal legislative action.
Permit me to back up and explain our concern, and offer a simple and straight forward way to enhance the bill's conservation values, while simultaneously strengthening its constitutional foundation.
When C-65, The Canadian Endangered Species Protection Act, was first developed, the government was labouring under a shadow of constitutional doubt. The Hydro Quebec case on the constitutionality of the Canadian Environmental Protection Act had not yet been resolved by the Supreme Court of Canada. Although most legal scholars, including Dale Gibson and former Chief Justice LaForest, argued that the federal government had abundant jurisdiction to protect species at risk, the Justice Department was more cautious. Environment Canada was granted only the most limited of scopes for species protection. Despite legal advice that heads of action to protect species could include Peace, Order and Good Government, as well as Criminal Law powers, the Justice Department took a narrower view.
The whole exercise has been hobbled since that first effort through an unwarranted emphasis on land ownership. Looking for jurisdiction for the federal government in only the safest of places, C-65 relied on federal lands, where jurisdiction was beyond doubt, as well as well-established areas of the existing exercise of federal powers -- The Fisheries Act and the Migratory Birds Convention Act. The only additional jurisdictional foray was for those species whose survival depended on the action of more than one government. Although the Interprovincial Cooperatives case (Supreme Court of Canada, 1975) gave the federal government clear jurisdiction for any species whose survival depended upon action by more than one province, ie species with an inter-provincial transboundary range, the government was more cautious. C-65 only applied a federal role to protect those species with an international transboundary range, and limited protection only to prohibitions, not habitat.
In many ways, we should be grateful that C-65 did not survive. The auspices for an effective federal act improved enormously in the fall of 1997 when the Supreme Court of Canada settled the question of the constitutionality of the Canadian Environmental Protection Act with a clear enunciation of the appropriate use of federal Criminal Law powers in environmental matters. The court's decision in the Hydro Quebec case, occurring after the first bill died on the Order Paper in spring of 1997, and prior to the introduction of the SARA attempt, gave the federal government clear scope for an effective approach to the protection of species at risk. The Criminal Law power was now clearly available to the government to protect species at risk. The Supreme Court of Canada set out clear advise on how to determine when federal legislation is using Criminal Law powers appropriately. Key to this determination is whether the pith and substance of the governmental action is "prohibitory" or "regulatory." Prohibitions can be characterized as "Thou shalt not..." Regulations can be characterized as "Thou shalt not, except on Tuesdays and Thursdays, after 6, on weekends and holidays."
The clearest and most straightforward exercise of Criminal Law powers in the protection of species at risk would be the prohibition of the killing, harming or disturbing of listed species and their residences from coast to coast and in all Canadian waters.
A perfect prohibition is found in section 32(1):
"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."
Section 33 is similarly structured with regard to prohibitions to protect residences. No constitutional problem arises.
Unfortunately, section 34(1) and section 35 undermine the constitutionality of sections 32 and 33. By retreating from a full statement of an unimpeded prohibition against the killing, harming, harassing capturing or taking of a species at risk anywhere in Canada, the Act appears to suggest that only areas of federal land ownership, outside territories, aquatic species or migratory birds are proper areas for federal protection. The prohibitions suddenly shrink to a scope smaller than C-65's -- as transboundary species are excluded.
Section 34 further undermines the prohibition in section 32 by adding highly discretionary mechanisms in the so-called "safety net" provisions of subsections (2-4). Having retreated from the normal exercise of federal powers, section 34 wants to selectively re-assert federal power in areas the bill itself suggests may be purely provincial. Let me stress again. No other piece of federal legislation has ever been structured in this way.
The Canadian Environmental Protection Act, for example, establishes the federal scope of action to control toxic substances, and offers a selective withdrawal of federal oversight only on the basis of negotiated equivalency agreements. This approach has now been supported by the Supreme Court of Canada. Why is the SARA in need of something novel, untested and potentially unsound?
I believe that Justice Department lawyers believe that the breadth of section 32 is sufficient to protect the subsequent bizarre configuration of the Act.
Legal and constitutional scholars do not agree with the advice the government has been given. At least one province has already pledged to attack the Act in the courts. Sections 34 and 35 could well be found by a future court to render the prohibition cast in section 32 "regulatory" in effect. The potential contamination of the exercise of Criminal Law powers in section 32, by both the retreat from the normal exercise of federal law powers in section 34(1) and the subsequent re-assertion of these powers on a discretionary basis (through the Governor in Council on a case by case basis) is likely to un-do both sections.
2. Why are Section 34 (1) and 35 included at all?
This is a critical question. In our view, the constitutionality of whole scheme of the Act is undermined by these sections. From a conservation viewpoint, the result is absurd. The effect is that, if passed in its current form, there would be no prohibition against the direct killing of a species at risk unless it was on federal land, was an aquatic species or migratory bird or was the subject of a regulation passed under section 34(2). In other words, the vast majority of species at risk in Canada could be wilfully shot without violating the Act.
The prohibition against killing a species or destroying its residence is the least likely aspect of this Act to provoke federal-provincial tensions. The Criminal Code operates across Canada, without any sections only applying on federal lands. Section 402, for example makes it an offense "to wilfully cause ...unnecessary pain, suffering or injury to an animal or bird."
No jurisdiction has ever complained about its application.
We recognize that in the hierarchy of legal protections for species, protecting their habitat poses greater difficulty constitutionally. Jurisdiction for federal action may exist under the power to provide "Peace, Order, and Good Government," but asserting that power to protect habitat will be a bold move with clear constitutional questions. SARWG has therefore focused on expanding mandatory habitat protection on federal lands and in areas of federal jurisdiction. There is no need for such cautions when prohibiting direct killing.
There is simply no logical explanation for the odd retreat found in section 34 and 35. It is not necessary to bolster the so-called "Safety net." Far more constitutionally sound would be the equivalency agreement approach where federal action could be triggered on a contractual basis. The federal government could delegate authority over species within a jurisdiction to a province or territory based on equivalency and then re-assert its authority if the provincial or territorial government failed to live up to its obligations under the agreement.
After over eighteen months of questioning the constitutionality of this provision and asking for an explanation for why this Act is so unusual in its structure, we have been given no explanation. The standard response is that "Justice thinks the bill is fine."
The answer to "Why?" is left unanswered. We presume there is no answer.
3. Protecting species across Canada -- no matter where they are found
Fortunately the solution to the Constitutional and conservation nightmare of the weird scope of C-5 can be resolved very simply. By ensuring that the prohibitions apply across Canada the Act is strengthened Constitutionally while simultaneously vastly improving the protection of species.
Nothing is lost in the scheme of the Act. Provincial and territorial jurisdictions are not as hostile to extending prohibitions as they are to the unpredictable "Safety net." Many provincial wildlife managers told SARWG that they expected the bill to prohibit direct killing of species and destruction of residences. The impacts on a province or territory are minor. Prosecutions for direct killing of species will be rare.
Cognizant of the concerns of resource user groups, SARWG has also advocated that the prohibition, like that for torturing animals, be restricted to wilful killing. Resource users and land owners have become unnecessarily alarmed by the prospect of being charged for accidental offenses. The opportunity to use the defence of due diligence is cold comfort to them. A mens rea offence is unlikely to create a negative reaction from either private landowners or provincial/territorial governments.
The question might then be asked, why bother? The overwhelming threat to endangered species is habitat loss, addressed by so many other of your witnesses. Why prohibit direct intentional killing if that's not the problem?
Failure to prohibit the direct, intentional killing of a species at risk (or destruction of their residence) anywhere in Canada will leave the majority of species outside the protection of this Act.
Imagine a future scenario: A land developer plans a mall by draining a wetland in southern British Columbia. The wetland harbours an endangered species. If, at least, the SARA makes the intentional killing of that species an offence, then some grounds exist for court injunctions to prohibit draining the wetland.
With this one change SARA would move substantially toward a national Act working to protect species wherever they are found.
Without this change, all your work and that of the Department and so many others could be for nought if the Supreme Court of Canada finds the odd structure of the Act has undermined its Constitutionality.
4. The intersection of CEAA and SARA
On one last point, I would like to revisit an aspect of the two previous briefs from SARWG (from October 2000 and March 2001).
As you may recall, we have raised concerns that section 137 is problematic. In the last few weeks after consulting industry and environmental members of the Regulatory Advisory Committee to the Canadian Environmental Assessment Agency, we are even more concerned.
Section 137 amends the Canadian Environmental Assessment Act definition of "environmental effect" to include listed species, residences and critical habitat. Three problems emerge from this attempt. Firstly, by including species at risk, as a matter of statutory interpretation it may appear that common species are no longer to be considered. Secondly, the emphasis on individuals and their residence may lead to impractical and even damaging counting exercises. Thirdly, and most worrying, the CEAA definition of environmental effect has been interpreted to have two levels of consideration. Initially "environmental effects" are direct effects on a broadly defined environment. Then the definition moves to another class of impacts caused by those direct effects, ie secondary or indirect impacts. In this category are socio-economic impacts, damage to archaeological structures and so on. The impact on species at risk falls in this latter category.
Serious damage and confusion to the administration of CEAA could occur is section 137 is left as it is. As the CEAA amendments, C-17 are soon to be under review, it would make more sense to delete section 137 altogether and revisit the best approach to the intersection of CEAA and SARA when that bill is before you. SARWG and other concerned groups have met with departmental officials and believe that it is uncontroversial to suggest that a drafting error has occurred here. We hope that the matter will not fall through the cracks as it is a small and narrow point, but one with potentially grave implications.
Thank you for this opportunity to present our concerns. Ensuring that the direct killing of species across Canada is the foundation of this Act is critical to its successful application.