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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 10 - Evidence

OTTAWA, Thursday, December 6, 2001

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.

Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) in the Chair.


The Joint Chairman (Mr. Grewal): This will be the last meeting of the year. This being a special season of the year, although the warm weather does not make it feel special, I want to extend best wishes to all committee members, counsel, clerk, interpreters, reporters and other staff members.

Our next meeting will take place on February 7, 2002.

We will begin with the proposed schedule for future meetings. If the schedule is acceptable, we will adopt it.

Ms Barnes: Will the meetings be at the same time?

The Joint Chairman (Mr. Grewal): Yes.

Mr. Macklin: I move that we adopt the schedule.

The Joint Chairman (Mr. Grewal): Is that agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

We will now deal with the fourth draft report. Are there any comments?

Mr. Wappel: I move that we adopt the report.

The Joint Chairman (Mr. Grewal): Is it agreed, honourable members?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.



Mr. François-R. Bernier, General Counsel of the Committee: These instruments relates to the third report of the joint committee, which report was adopted in October 1996. In that report, the committee put forward the view that the public lands mineral regulations as well as a few other federal regulations are unconstitutional because they were enacted in only one official language, contrary to section 133 of the Constitution Act, 1867.

The government's response to the report was requested and tabled in the House of Commons. The committee was not satisfied with that response. In December 1997, the chairmen of the committee wrote to the Minister of Justice to outline why and to request that she reply to four specific questions, which are listed on page 3 of that December 10 letter.

The minister replied on December 20, 1999. That reply did not provide answers to the specific questions but did contain a general statement by the minister that she had requested her officials to further study the issues raised and to suggest ways to remove any uncertainties regarding the validity of federal regulations adopted in only one official language. Since then, attempts to obtain a progress report have been unsuccessful.

As can be seen from the next file, the small vessel regulations, the government is still relying on the flawed response to the third report to support the validity of regulations enacted in only one official language.

At this time, we suggest that the committee make a firm request of the minister for an answer to the four specific questions that were put to her in 1997.

Mr. Wappel: As usual, our counsel is very diplomatic, but I think that three follow-up letters are enough and that we should have the officials here at the earliest opportunity to explain why they do not answer our correspondence.

Mr. Macklin: I agree. We saw at the last meeting that we got a response rather dramatically when we suggested that officials appear here. I think it is an appropriate way of proceeding rather than using the alternative of reporting to the House.

Mr. Bernier: Should that fit the now almost traditional form, that the committee expects a reply by its first meeting after resumption of the work of Parliament, or that the witnesses should appear if a reply has not been received by then, or simply to request the appearance, irrespective?

Mr. Macklin: I take the position that we should ask for their presence. The time has come that we must send some subtle messages that this committee expects reasonable replies within a reasonable period of time. We are not getting either.

The Joint Chairman (Mr. Grewal): Since the correspondence has been with the minister, I believe that we should call the minister and she can bring officials, if she wishes. Is that agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Therefore, the clerk will invite the minister to appear before the committee.


(For text of documents, see Appendix, p. 10A:1)

Mr. Peter Bernhardt, Counsel to the Committee: The nature of the committee's concerns is explained on the first page of the chairmen's letter of September 10 to the Minister of Health. When this file was last before the committee, members were dissatisfied about the lack of progress in addressing these concerns.

Amendments that were first promised some 15 years ago were to be further delayed pending the completion of consultations that would be followed by a complete rewriting of the regulations.

The minister was advised that the file would be back before the committee in the fall and that at that time consideration would be given to disallowance unless action had been taken or a firm and definitive plan of action agreed upon.

In his letter of November 2, the minister agreed to proceed with the amendments in question independently. He assures the committee that action will be completed by the end of 2002. The minister also states this to be "a firm commitment." Assuming this is satisfactory to members, progress can be monitored in the usual fashion.

Ms Barnes: I was upset about the reverse onus in this one last year. This is a draconian way to deal with professionals. This will be done by the end of 2002?

Mr. Macklin: That is the end of the coming year.

Ms Barnes: That is another year with a reverse onus situation, which is the worst thing you can do in law to anyone. We should say that if this must take another year we will disallow it now and they can come instead with an amendment. That is a bad position for them to have held for 14 years.

Mr. Wappel: I like the minister's letter, but I guess that is because I have been here so long that a year does not seem like a long time.

Ms Barnes: It has been 15 years.

Mr. Wappel: I am referring to the minister's letter, though. I thought he had come a long way. However, I understand what Ms Barnes is saying.

The Joint Chairman (Mr. Grewal): Should we go for disallowance?

Mr. Lee: My understanding of the disallowance is that we would use it as a last option. In this case, the minister has agreed to use a relatively fast-tracked agenda to obtain what we have recommended. It seems like a fairly straight line to where we want to go. We need a reason to go to disallowance.

Ms Barnes has indicated why we might consider that; however, from my point of view, adding a year and a half to 15 years when we are on a straight line to a direct objective would not be a reason to use disallowance at this time.

Mr. Bernhardt: I could suggest a course of action that might fall somewhere in the middle. If members are generally satisfied with the course of action proposed by the minister, it would be open to write back to the minister thanking him for his undertaking but indicating that members have some concern with this staying on the books for another year and urging him to move things up and that the committee would consider that a further positive development.

The Joint Chairman (Mr. Grewal): Shall we write that letter then?

Mr. Lee: Often we seek an undertaking not to use the offending provision. Have we ever done that in this case? Have they undertaken not to use it?

Mr. Bernhardt: The problem for the department is that they need a provision like this. This is a mechanism by which they can take away permission from a pharmacist to have possession of these drugs that are otherwise illegal. If they simply stopped relying on the provision entirely, that would seriously handicap them.

The problem is that the reverse onus is inextricably built in. They must come back with a new provision that does not have a reverse onus, but it would be difficult, in the interim, to abandon use of the provision entirely.

Ms Barnes: Our letter was less strongly worded than we had talked about. It said that, from their point of view, amendments to sections 50 and 60, which were said to be under development in October 1986, are not even ready for adoption 14 years later. I do not see a lot of difference between that undertaking a long time ago and the letter you have before you now. It is another promise to amend. The majority can do what it wants. However, I want it on the record that I would like this fixed immediately. I would have gone for a reservation.

Mr. Macklin: I would add to the points that have been made by counsel. That is an appropriate letter to send, but this committee needs a progress report before the summer break on that process. We should monitor it closely and make certain that we will not slip into the situation that Ms Barnes suggests has happened in the past. Everyone is taking this extraordinarily seriously. The time has come to have them follow-up and complete their undertaking.

Mr. Wappel: I would add one thing. I would ask counsel that, should it happen that before the end of the year 2002 Mr. Rock is no longer the Minister of Health, the file be immediately brought back to us so that we can write a letter to whomever is the new Minister of Health to advise him or her of the personal undertaking of the former minister and ask the new minister if he or she will continue to honour that undertaking. If not, then we can go back to what Ms Barnes said.

The Joint Chairman (Mr. Grewal): I am hearing that we should write a letter to the minister and ask to tighten up the time schedule. Is that a consensus?

Ms Barnes: We should request an update by, let us say, Easter, so that we can have something.

Mr. Bernier: Perhaps the way to handle this would be for the chair to specifically request that the minister instruct his department to communicate on a regular basis with counsel and to provide those updates on a monthly basis here. He should specifically designate a contact person for this file.

Ms Barnes: All right. The letter should point out again that this file is approaching 15 years. I think that is insane.

The Joint Chairman (Mr. Grewal): Is it agreed to write in that fashion?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.





Mr. Bernhardt: The minister's November 23 letter is intended to address the matters pursued in the joint chairmen's letter of September 26, 2000. The minister previously indicated that he had been unsure as to whether the committee still wished to pursue these questions, given last fall's election. As the chairmen's letter indicates, this claim was met with a certain degree of skepticism. The November 6 letter asked that a reply be provided before this morning's meeting. We do have that reply.

The committee's objections relate to three areas. The first concern is the need to define what is meant by a related activity. That is an activity that is related to fishing. The committee asked what the term meant and had previously been told that "related activities" meant transporting fish to landing sites and landing fish at the landing sites. The minister's letter now advises that those were merely intended as examples of related activities.

Moreover, it is stated that as the term "related activities" now appears in section 33.1(2) of the Fisheries Act, its use in the regulations is "appropriate." The issue is not whether the use of the term is appropriate but simply whether the term as used in the regulations is sufficiently clear. The fact that the term appears in the statute in some other context is quite beside the point.

The more substantive objection of the committee relates to the scheme of the regulations pursuant to which the minister is granted a discretion to authorize Aboriginal organizations to issue fishing licences.

It has been the view of the committee that this involves an unauthorized sub-delegation of the Governor in Council's authority to make regulations respecting the issuance of licences. The committee's position in this regard is set out at some length in point 2 of the chairmen's September 26, 2000, letter. In large part, point 2 was directed towards demonstrating why the decision in the Peralta case, which had been previously relied upon by the department, was not applicable in the present circumstances.

The final objection was to section 6 of the regulations, which is a provision that states that, in the event of a conflict or an inconsistency between the regulations and a condition of a licence, the condition of the licence is to take precedence. The committee believes that the power to permit the issuance of a licence to override the law would require specific grant of enabling power from Parliament, which is lacking in this instance.

In his reply, the minister now seeks to rely on another case. Having moved away from Peralta, we have a new case. This is a decision of the British Columbia Court of Appeal in R. v. Huovinen. At the outset, I suppose it bears noting that this judgment was delivered in July 2000. In other words, when the committee was told that these issues were very complex and would need some time to assess, the department had been aware of this case for more than a year. This could reinforce the impression that our previous correspondence to some extent at least has been, shall I say, dilatory.

As for the case itself, it would be our preference to bring the file back to the committee after we have had a chance to do a more formal analysis. The file is primarily on the agenda this morning simply to let members know that a reply was provided within the time requested.

Having said that, however, it is our preliminary view that the case is of doubtful relevance. In this new case, Huovinen, the argument before the court was simply whether an Aboriginal fishing licence could be granted only where a recognized Aboriginal right to fish existed. It was claimed by the appellant that to issue a licence in the circumstance where now such right had been established exceeded the scope of the regulations. As the court itself expressly stated, it was never argued in that case that the Governor in Council lacked the power to make the regulations; however, that is precisely the committee's position.

As for section 6, the court did mention this provision in passing; however, its validity was not put in issue, nor was the provision relevant to the ratio of the case. Again, while we would like to come back to the committee with a formal analysis, a note or opinion that we could put on the agenda, our preliminary view at this time is that the minister's reply would appear to be unsatisfactory.

The Joint Chairman (Mr. Grewal): Where do we go from here in your judgment, counsel?

Mr. Bernhardt: At this time, it would be my suggestion to put the file back on for the first agenda in the New Year. That would give us an opportunity to set out in detail, in writing, a full analysis of the case.

Mr. Cummins: The issue here is rather clear. The minister tells the committee to read the Huovinen decision and he suggests that it considered the AFS regulations and found them unacceptable. In fact, that is not the case. As counsel suggested, the committee challenged the regulations and the validity of the regulations. The court, in Huovinen, did not deal with the validity of the regulations. The court, in Huovinen, dealt with the validity of the licences established under the regulations, as I understand it, which are two different things.

In fact, in responding to the committee, the minister has not responded because he has not answered the very questions that were raised by the committee. This answer is a non-answer. I think it is quite clear that the minister is evading the issue here. I do not think it appropriate.

This matter is a matter of long-standing. These regulations were gazetted in 1993 and they were revalidated in 1994. The effect of the regulations has been to put many people out of business; the effect on the management of the Fraser River fishery has been huge. It is not a without-consequences issue, yet it has been dragging on. It seems to me that the minister is not giving the court or this committee the kind of attention that it deserves.

I would just point out two instances where the government has acknowledged the committee's concerns and yet has failed to address them. This is a matter of public record in the Provincial Court of British Columbia in the case of R. v. Gary Wilbert Sonnenberg, Leonard Samuel Sonnenberg, Robert Norman Maxam and Lawrence Russell Shearer. The date of this is January 10, 2001. The question that was put to Ionson, J.A., for the Crown, is this:

And I suppose that would be fair to say that you're not aware that the joint committee on the scrutiny of regulations is of the view that - and has advised the Minister that Section 6 is completely invalid and the Minister cannot override regulations in that way. That would be news to you, I suppose, would it?

Mr. Ionson's response was: "Oh, no, it's not news to me."

In another instance in Sonnenberg, before Judge Scarlett, on January 9, 2001, this time, Mr. Harvey asked S. Farlinger, for the Crown, the following question, in part:

This is a letter from the standing - this is at tab 30 - standing joint committee for the scrutiny of regulations. It seems to be a - this is a joint committee of House of Commons and the Senate, standing joint committee for the scrutiny of regulations, and it's - this committee is writing to the Minister of Fisheries and Oceans, and it's dated September 26th, 2000.
The letter of the committee is read into the record. The questioner continues:

... but at the end you see at page 6, just above the signatures of the committee members, page 6, they say:
"We will appreciate your reconsideration of those above matters and look forward to hearing from you."

Can you say whether or not the Department of Fisheries and Oceans has reconsidered these communal regulations and has responded to the standing joint committee for the scrutiny of regulations?

The answer is:

The department would, as a matter of course, respond to a letter from the standing joint committee. I'm not aware specifically of the status of that response at this point.

The department has been fully aware of the issue that is before it. It is my view that dragging this out is hurtful to the people who have cases before the court. If the committee is to be taken seriously by department officials and the ministers, it will have to move in a more decisive fashion on this one. A decade has passed since these regulations were put in place. We still have got nowhere with them.

Mr. Myers: I like the suggestion of counsel, that is, that we do our homework and get a thorough analysis done, which I think is what is being said, and we bring it back to our first meeting in the New Year.

The Joint Chairman (Mr. Grewal): The next meeting is on February 7.

Mr. Myers: That makes a lot of sense, but it seems to me we need to have thorough analysis, and then go from there. I agree with Mr. Cummins. If this is feet dragging, then we need to move. However, we need to do our homework first is my point.

Mr. Wappel: I agree both with Mr. Cummins and Mr. Myers. I wanted to know from counsel why this was not put under "Reply Unsatisfactory." Part of the answer was you wanted to advise us that there was a letter, but there is more to this letter than just the Huovinen case. There is the complete ignoring of the fact that his department figured that we would just go away after the election. There was no response whatsoever to that, and there were other issues. It puzzled me that it was not put under "Reply Unsatisfactory" or perhaps even "Reply Unsatisfactory (?)" as opposed to just "Letters to and from Ministers."

Mr. Bernhardt: Our usual practice is that if a letter is from a minister, it goes under the heading "Letters to and from Ministers."

I suppose that when that practice was started it was felt that a letter from a minister would, of necessity, be of some importance and that anything that fell into the category, once the committee had decided to write to a minister, would be of sufficient concern that it would not be glossed over. Everything that is from a minister goes under "Letters to and from Ministers." Perhaps we should have subcategories under that main category.

Mr. Lee: Can I just confirm that the courts are finished with the issue in Huovinen.

Mr. Bernhardt: The appeal to the Supreme Court was denied.

Mr. Lee: All right, so we are free. In previous instances, we have often waited for the courts. I recall the case of Kemano and the RCMP regulations. It is not often that we defer to the courts.

Ministers often find themselves caught between a rock and a hard place. In this case, we have an issue that will apparently not be resolved in our favour. I am generally in support of what the other members have said so far in terms of where we go on this matter.


Mr. Brien: A court decision concerning a rapid response is appended to the documents and I only have the English version of the decision. Is this the usual practice?

Mr. Bernier: I am aware of that situation. This is an unreported text of a decision which has not been published and is protected by copyright. Even leaving aside the matter of copyright protection, this document belong to the Crown. We could have taken the liberty of having it translated for the purposes of the parliamentary committee, but we hesitated to do so.

Moreover, I have some serious reservations with regard to having a court decision translated without being certain that the translation in question has the approval of the court. I would, indeed, have the same reservations if this were a French-language decision. Unless we obtained a translation which had the approval of the court in question, we would not translate an unreported text, and the members would be provided with the original French text. It is so easy in a translation to misrender a judicial decision and we really do not want to take on that responsibility. Perhaps we are wrong and should in any case translate the document, but there are risks associated with doing that.

Mr. Brien: I understand your perspective, but if this happened with a French-language text, several people would have trouble reading the document and understanding it.

The Joint Chairman (Senator Hervieux-Payette): I noticed that the text was in English. I did not know why that was so, because here, usually, all texts are translated and given to the members in both official languages, and we rigorously subscribe to that practice, except that in this case I agree with Mr. Bernier's opinion. We cannot claim to be authorities in the matter of translating a British Columbia court decision in a specialized area of the law, and generally decisions in both languages are considered to be equally authoritative because they come from the court.

As parliamentarians we have access to translation services, but this would not be an official translation, it would be a translation that was done for our use, but I can submit a request to the House.

Mr. Brien: It is unrealistic to think that with two days' notice the text will be translated following a request made a member's office. I am not going to make a big issue out of this but insofar as the content is concerned, I wanted to say that we are not taken very seriously by the minister where this file is concerned, and that the time has come to make ourselves heard in no uncertain terms.


The Joint Chairman (Mr. Grewal): Thank you for pointing that out. We appreciate it.

Mr. Strahl: I am not a regular member on this committee, but I have some familiarity with this issue in that a good number of these regulations apply to the Fraser River in my riding. It has been a problem for both Aboriginal and non-Aboriginal people to figure out these regulations because they seem to be at the whim of the minister as opposed to following statutory authority. People end up lobbying hard, long and continuously on both sides trying to get their way, knowing that he who can lobby and push the hardest gets the biggest chunk of the action. It is a poor way to regulate a fishery, especially one that is in some danger. It is a poor way to manage things. It has caused some serious problems with overfishing on the Fraser River and a real problem in both the sport and commercial fisheries. These regulations are new every morning. If not every morning, they seem to be made up on a weekly basis, depending on who is pushing the hardest.

The committee was entirely proper in its initial letter to the minister saying that these regulations simply lack statutory authority. That is the problem with them. The minister has interpreted court rulings and tried to use court cases to justify what really are policy decisions. They are not constitutional decisions and they are not statutory decisions. They are policy initiatives by ministers. It is a mistake to allow policy or regulations to be made in the minister's office when they need statutory authority. It is simply the wrong way to go about running the country, especially on something as important as a perishable resource like a fishery.

To send the right message to the minister, I think the committee should send a disallowance report on these regulations. The committee should get back to the minister and say, "This answer is inadequate." I cannot believe that he thinks an election would obviate the concern of this committee.

Second, I think the initial argument that you put forward in September of last year is the proper one, that is, a lack of proper statutory authority. I would move that the committee send a disallowance report on these regulations.

Ms Barnes: Are we discussing this motion? If so, it is premature when our own counsel has not properly given us the interpretation. They have said that to us. We do not normally move ahead when counsel is clearly saying that they are still looking at a first view.

Having said that, however, I believe this issue really affect people's lives. In our first meeting next February, when counsel has had time to do their job, I think this committee should move.

Mr. Cummins: If I could refer to the committee's letter of September 26, 2000, at that point we reminded the minister not to use court decisions to justify his actions in Sparrow, et cetera. That was the attitude of the committee. What the minister has done here is attempted to use an irrelevant court decision to justify his actions, a court decision that does not address the matter at all. While the court decision may be interesting, it is not appropriate for us to delay taking action on this matter given its irrelevance and given the committee's advice to the minister before not to use court decisions to justify his actions. If we are to have any believability out there, we must be consistent.

Mr. Macklin: I disagree with that last comment. Clearly, court decisions are relevant in determining whether the regulations have been appropriate. I would not like to hear that argument used in supporting this motion in an effective manner. I would prefer that we take the course of conduct that has been discussed here generally, which is that, first, we get a definitive decision from counsel as to the relevance of the case that has been quoted and, second, that we take immediate action following the first February meeting of this committee given Mr. Strahl's comments about how serious in his riding this situation appears to be.

Mr. Strahl: I should like to read into the record the quote from our September 26 letter? It states, in part, the following:

Such decisions may result in a need to amend legislation in order to ensure the legislation's consistency with the Court's declaration of the law but court decisions, unless they deal directly with the interpretation of an Act, cannot be invoked to justify disregarding the intent of an Act as first enacted or as supporting a changed interpretation of the Act absent any amendment by Parliament.
This court decision is clearly irrelevant, and the minister is using this irrelevancy to justify his actions. I say that that is inappropriate and unacceptable and should be ignored.

Mr. Wappel: All of the points that have been made sound like they would be better made on February 7. Had our counsel said today that they have analyzed the case and that it is irrelevant, this would have gone much further. There is no disagreement about how important the issue is to fishers and people along the Fraser River. As Mr. Myers said, let us get that definitive opinion by counsel so that when we do issue a disallowance report, if that is the will of the committee, we deal with what we know is coming from the minister, which is that the Huovinen case is relevant. We will deal with that argument in a draft disallowance report and point out that it is not.

I appreciate that you want to get some points on the record, Mr. Cummins, but it is my view that the best thing to do would be to move along with getting counsel's opinion, and we should agree that it would be at the first meeting after the break. We should deal with that as a special agenda item at that time.

Mr. Strahl: I am not sure about your first meeting in February. I know how the fishing cycle goes. Once fishing starts, it is almost irreversible, once people get out on the river and the nets are set. It takes time to communicate this through the system. As you can imagine, people are buying equipment and licences and advertising their guided fishing trips on the Fraser River to German tourists right now. This is very time-sensitive.

If I thought it could be solved on February 7 and dealt with, that would be one thing, but there are people who are literally giving up and selling their businesses because of the lack of surety in these regulations. A lot of them have given up trying to advertise for business. We have 150 fishers out of Chilliwack alone who work the Fraser River for everything from sturgeon to salmon. They advertise based on the regulations that they think will come about.

If a fisher gets half a busload of European tourists over and the regulations change the moment they hit the soil, people will be angry. These people pay $10,000 apiece for a fishing trip. If they get here and find out they cannot fish - this is very serious; it is why people are so angry.

It is the same for both Aboriginals and non-Aboriginals. They cannot plan for next week because the regulations seem to be whimsical, and that is partly because there is poor statutory authority for them.

This has been going on for 10 years in my riding. I am surprised and thankful that it has not resulted in violence, although there have been confrontations.

The message about this problem should be sent as loudly and clearly as possible to the minister. As you can see from the correspondence, it is not being taken seriously. We have to arrest this problem because it is getting worse and the fishery is at stake, as well as livelihoods and other things. The best signal to send is the disallowance report, which tells the minister to get his act together and put in place the proper statutory regime. Otherwise, I am fearful that you will start in February with an exchange of correspondence. The nets will go in the river and another season will be behind us.

The Joint Chairman (Mr. Grewal): I believe we have had enough discussion to deal with the motion on the floor. Will all those in favour of the motion so indicate.

Some Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Will those opposed please indicate.

Some Hon. Members: Nay.

The Joint Chairman (Mr. Grewal): The vote is eight to seven, so the motion is adopted.



Mr. Bernier: After examining this regulation, the legal advisor thought there might have been a drafting error in the definition of the term "steel shot," where it is mentioned that steel shot must consist of a least 98 per cent iron and not more than 1 per cent of any other element. It was felt that the shot should perhaps consist of not more than 2 per cent of any other element. The comment was addressed to the department which agreed that there was a drafting problem and promised a correction. The file was submitted to the committee in June 2000 under the "action promised" heading. The legal advisor followed up and a new letter was received from the department with a memorandum appended containing an explanation of the current definition, which showed why the current definition is in fact correct. Thus, there is no need to change anything. Having examined the issue, legal counsel are in agreement with that and we suggest that this file be closed.


Ms Barnes: Our numbers seem to have diminished. I need a point of clarification on the last vote taken. It is my understanding, and I want to clarify this not only for myself but for Mr. Cummins, that the motion that we just agreed to still has to come back before us for adoption at the first meeting next year. Therefore, whether we deal with the motion now or on February 7, the result is exactly the same.

Mr. Bernier: If I may, Ms Barnes, you are correct. As matters stand, we will prepare a draft report that will be submitted at the meeting on February 7, our first meeting in the New Year.

Ms Barnes: Which report must be adopted to go forward?

Mr. Bernier: Yes.

Ms Barnes: At that time, will there still be an opportunity for input? I do not want to hear, on February 7, when we have a motion before us, that we could have dealt with it today.

Mr. Bernhardt: The practice is that if we look at the case and decide that it is irrelevant, that will be part of the disallowance report. If we come to the opposite conclusion, there will be the disallowance report and a separate document saying why we think the case is relevant.

Ms Barnes: I want to be clear, especially for Mr. Cummins because I know he needs to know this. By doing what they did today, if I had not talked, you would have come back here with that; we would have voted on it, and we would still have to deal with getting the information from you. I am suggesting that you have the information ready to deal with.

Mr. Myers: No.

The Joint Chairman (Senator Hervieux-Payette): We have a motion to prepare for disallowance first. Second, you can, if you need that information, make a motion to that effect, requiring production of the report as well as the clarification that counsel would like.

Ms Barnes: I want to be able to deal with this on February 7. I do not want to hear on that day that counsel does not have the information because it was not necessary because we had already done it. In actual fact, we have not gained any time here.

Mr. Cummins: Yes, we have.

The Joint Chairman (Senator Hervieux-Payette): Yes, we have. We have probably gained one meeting.

Mr. Bernier: I can tell committee members that the case is irrelevant. There is no doubt in our minds.

Ms Barnes: Why did you not say that earlier?

Mr. Bernier: When we receive a letter from a minister of the Crown two days before a meeting of the committee, we think it would be out of order to not provide at least a written opinion dissecting and giving our reasons in full, as opposed to simply reading the case and saying "bah." There is no doubt in our minds, but we owe it to the minister and to the committee to put that position in a written form so the committee can study it.

Otherwise, you would have to rely simply on our say-so orally in this committee that it is irrelevant. We think it is preferable that members have a written document that they can study in their offices and make up their minds.

Ms Barnes: I move that we have the full particulars of the case before us for February 7.

Mr. Bernier: You will certainly have that.

The Joint Chairman (Mr. Grewal): My understanding is that the motion is to prepare a disallowance report. That motion was passed. Even though I was in the chair, I did not vote. The vote was eight to seven.

After the motion passes, as I understand from past experience, a draft disallowance report then comes to the committee. Am I correct in that understanding?

Hon. Members: Yes.

The Joint Chairman (Mr. Grewal): We then vote on that draft. If we get consensus in the committee, we table that report in both Houses.

Mr. Bernier: That is if the committee adopts the report.

The Joint Chairman (Mr. Grewal): Is that how we want to proceed?

Ms Barnes: Yes.

The Joint Chairman (Senator Hervieux-Payette): That is what we said. This is the first motion. We do not need the second motion for the detailed report and the analysis with all the facts for the next meeting. That will come anyway with the report.

The Joint Chairman (Mr. Grewal): What Ms Barnes said about wanting the details of the case has no implication on the first motion that was passed?

Ms Barnes: No. It just affects our ability to deal with it on February 7. I want the facts before I have to vote on the report. That is what I am telling you.

The Joint Chairman (Mr. Grewal): I understand that to be the decision in the committee.

Mr. Cummins: I understand the procedure. I have been involved with this matter since its inception. I have been before the judge on it.

Ms Barnes: That is not relevant.

Mr. Cummins: I understand the law. I am not a lawyer but I understand the issue. I understand the irrelevance of the case that was before us. All we are doing by moving ahead with disallowance is gaining a few weeks. You will get all the information. No one will be denied anything. You will be able to make a decision fully informed.

Ms Barnes: That just says we did not make a fully informed decision today. That is the inference.

Mr. Cummins: When we move ahead in the final decision we will be more fully informed.


The Join Chairman (Senator Hervieux-Payette): I understand that the advisors agree that there is no longer an issue concerning SOR/97-400 and that the matter has been settled?

Mr. Bernier: Yes.


Mr. Wappel: This confused me when I got the agenda. I cannot see SOR/97-400 on the agenda. Did I miss it somewhere? I know it was in the materials.

Mr. Bernier: A revised copy of the agenda was sent to your office. Obviously, you did not receive it.


Mr. Bernier: The correspondence between counsel and the department deals with a number of problems associated with the Domestic Substances List and the Non-Domestic Substances List made under the Canadian Environmental Protection Act.

First, the instruments amending the list did not disclose that the conditions imposed in the legislation on the exercise of the power to make or amend the list were met in each case. At this point, we now have an undertaking from the department that in future they will recite the fulfilment of those conditions precedent. That is satisfactory.

Second, there was a problem in that certain instruments amended both the Domestic Substances List and Non-Domestic Substances List even though the title of those instruments only referred to the Domestic Substances List. We thought that practice was a little misleading for the reader. Again, the department has agreed to change the practice and will make it clear that when an instrument amends both lists, both lists will be referred to in the title.

Third, the department had argued that amendments to the Non-Domestic Substances List did not need to be registered under the Statutory Instruments Act. For the reasons stated by Mr. Rousseau in his letter of June 13, 2000, that is not correct.

The department now recognizes that these amendments are required to be registered and will do so. On this point, it simply remains to ensure that registration of past instruments is actually effected. Otherwise, all the issues raised by counsel have been resolved.

The Joint Chairman (Senator Hervieux-Payette): What is your recommendation?

Mr. Bernier: We will follow up on the registration of past instruments. Once that is done, the file can be closed, ensuring that the registration is effected.

The Joint Chairman (Senator Hervieux-Payette): Any questions? Agreed?

Hon. Members: Agreed.



(For text of documents, see Appendix, p. 10B:1)

Mr. Bernier: The instrument registered as SOR/98-271 clarified the drafting of section 4(4) of the regulations as promised to the committee. The same instrument gave rise to the three concerns detailed in counsel's letter of September 22, 1998. Those concerns were addressed in the amendment registered as SOR/2000-266. Those two files can now be closed.

The Joint Chairman (Senator Hervieux-Payette): Any questions? Agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix, p. 10C:1)

Mr. Bernier: This is under "Reply Unsatisfactory." In this case, counsel's difficulty with the departmental response centres on the fifth paragraph of Mr. Sinclair's letter of April 27, 2001. I point out immediately that there was a translation of that letter from French to English that contains some major errors. A new corrected version has been distributed by the clerk. The fifth paragraph of the April 27 letter reads as follows:

In fact, it is section 2 of the Indian Bands Council Method of Election Regulations which determines the method of election of the bands in accordance with subsection 74(3) of the Act. This order of the Governor in Council was made prior to the order in council previously mentioned.

The problem is that this statement is entirely wrong. The regulation of the Governor in Council prescribing methods of election was made on March 4, 1997. The minister's order was made before, not after, that regulation, on February 11, 1997.

The question remains as to how the ministerial order could divide the listed band in a schedule according to method of election when those methods of elections would only be prescribed by the Governor in Council a month or so later.

The department has put the cart before the horse here and apparently does not recognize this. It is not aware of the dates on which the instruments were made. It is suggested that another letter be sent to clarify the issue for the department.

Mr. Lee: I agree.


The Joint Chairman (Senator Hervieux-Payette): I did not understand your suggestion.

Mr. Bernier: I suggested that we write to the department again to clarify the relevant dates.

The Join Chairman (Senator Hervieux-Payette): If I understood correctly, if this were approved again, only one of the measures would have to be passed in order to be in compliance with the regulations. One arrived before the other but it should have been the other way around. So the one that was approved too early should now be approved again?

Mr. Bernier: We asked ourselves that question, but we believe that in is order even though the minister organized his schedule in three parts according to the three election methods, he did not intend to set the election methods in his order. It is a bit ambiguous, but we could look at the order and point out that it is a drafting problem. All we want from the department is that it recognize that there has been a problem, and that in future, it ensure that the Governor in Council has made regulations and prescribed methods of election before the minister adds a band or makes an order concerning a particular band.

The Joint Chairman (Senator Hervieux-Payette): Should it not correct the situation for the future and put things in order?

Mr. Bernier: The ministerial order should be made again if the order was considered illegal, because it was made before the regulations. I do not think that can be said. At best it can be said that there is a drafting problem. The problem relates to the fact that the department must recognize that the horse comes before the cart, and not the opposite.



(For test of documents, see Appendix, p. 10D:1)

Mr. Bernhardt: The question arose here due to the fact that this amendment stated that it was adding item D.14.1 to the relevant table of the regulation after item D.14. It appeared at the time that there was no item D.14 for it to be added after. The department's explanation is that the two amendments adding D.14 and D.14.1 were pre-published at the same time, but the one that added D.14 in the end was not made until some months after the one adding item D.14.1.

In other words, the reply really just confirms the 2000-196 is defective in that it purports to place a new item following an item that did not exist at the time. To this extent, the reply cannot be said to be satisfactory. On the other hand, there was clearly a mistake that the intent seems quite clear and it is difficult to see if the amendment could not be given effect in the end. In view of this, members might well conclude there is it nothing here worth pursuing.


The Joint Chairman (Senator Hervieux-Payette): This is a technical amendment, if I understand correctly. D-14 did not exist so it is difficult to put anything after D-14; it is not necessarily invalidated, but is simply in the wrong place.


Mr. Wappel: Madam Chair, it fascinates me how you would even notice that.

Mr. Bernhardt: You look at the table and you try to see where you plug it in. You are looking for 14 and cannot find it.

The Joint Chairman (Senator Hervieux-Payette): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Carried.


(For test of documents, see Appendix, p. 10E:1)

Mr. Bernhardt: Mr. Sinclair's letter of August 31 advises that there is now only one outstanding bylaw that remains to be enacted. Progress report on this initiative by now would appear to be in order. As for the committee's other recommendations, these involve changes to the Indian Act itself. They are contingent on the progress of the development of new legislation, as was announced in the last Throne Speech. I suppose there is little choice for the committee but to continue to be patient on that front.


The Joint Chairman (Senator Hervieux-Payette): Do we know whether the Indian Chiefs were in agreement?


I am looking at the French version. They say there is no authority, that it is the Indian chiefs who will adopt it or not. Do we know whether the Indian chiefs have adopted it?

Mr. Bernhardt: As I understand, there were a large number of bylaws that required enactment, so they would have pursued those on an individual band-by-band basis. Apparently the number was 37. We are now down to one, so there is apparently one recalcitrant band out there that still needs to act. We hope that it will be brought in line with the others.

The Joint Chairman (Senator Hervieux-Payette): So far so good. Okay, thank you. Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Carried.


Mr. Bernhardt: The matters raised in connection with these regulations involve a point of drafting in the French version and a minor discrepancy between the English and French versions. Amendments had been promised for early 1999. These were delayed, apparently due to what is termed unforeseen circumstances that required the points raised by the committee to be re-examined. Frankly, I confess I have no idea what that means. In any event, the amendments are now anticipated to come into force at the end of 2002. Progress would be monitored in the usual fashion.

The Joint Chairman (Senator Hervieux-Payette): Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Carried. No, sorry. The French version is all right now or not?

Mr. Bernhardt: No, a minor amendment needs to be made to the French version and there is also one provision in which there is a small discrepancy between the two versions. Those two corrections need to be made. Apparently they will now be made by the end of next year.

The Joint Chairman (Senator Hervieux-Payette): Are the extraordinary circumstances that you are just wondering what it is?

Mr. Bernhardt: I am not sure, given the nature of those concerns why they would have to be re-examined.

The Joint Chairman (Senator Hervieux-Payette): We will not write and ask any questions. Is it agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Hervieux-Payette): Carried.



(For test of documents, see Appendix, p. 10F:1)

Mr. Bernhardt: The committee first raised concerns in connection with these two files in the one case in 1980, the other case in 1985. Over the years, most of these concerns have been addressed. At this point, we are left with two remaining issues.

Counsel's letter of December 4, 2000, sought an assurance that these remaining two matters were being dealt with, as well as some indication as to when the amendments might be expected. The department's reply advises that a comprehensive review that is underway will result in the consolidation of these regulations of the migratory birds sanctuary regulations and the wildlife area regulations. It does seem that the committee's remaining concerns will be addressed as part of this process; however, there is no indication given as to an anticipated time frame. Members might wish to consider whether we should write back seeking this information as to when. Perhaps it could also be indicated in that letter that if these new regulations are to be some time away the committee would wish that the two matters be dealt with independently.

The Joint Chairman (Senator Hervieux-Payette): Just thinking out loud, will the new bill that is in the House modify this legislation? Is it not part of that?

Mr. Bernhardt: I do not believe so. We are dealing here primarily with ducks and geese.

The Joint Chairman (Senator Hervieux-Payette): People would be impressed if they knew how much we take care of the birds in this country.

Is it agreed?

Mr. Macklin: I want to support counsel's position. I think it is good that we put in a time period that it is reasonable, failing which they should go ahead and do them independently. That is a good idea. Otherwise, it is one more excuse for delay.



(For text of documents, see Appendix, p. 10G:1)

Mr. Bernhardt: As the note explains, these two instruments complete action in connection with the concerns raised by the committee with respect to the status of the number of harbours. Members may recall that this was an issue that the committee devoted some attention to in the previous Parliament. It has now been entirely resolved.

Some 13 points were raised upon reviewing the new public ports and port facilities regulations. Amendments have been promised on all of these except for point 1. This deals with provisions requiring the Minister of Transport to ensure that the date of transfer of the public port facility or the transfer of the bed of the navigable waters at a port is published in Part I of the Canada Gazette as soon as possible after the transfer.

The department is of the view that section 65(6) of the Canada Marine Act permits the Governor in Council to make a regulation imposing a duty on the minister. Section 65(6) simply authorizes the Governor in Council by regulation to repeal the designation of a public port or public port facility.

It should be obvious that there is nothing in this provision that permits the making of a regulation imposing a duty on anyone. This is so, whether it is imposed on the minister or on the general public. It is important to keep in mind in this regard that if there is authority to impose a duty on the minister that same authority must also exist to impose it on others.

At one point, the department sought to invoke the doctrine of what is described as "inherent powers." This is apparently based on the view that certain powers follow from the grant of regulatory authority and somehow exist unseen below the surface. As I think members have quickly grasped, there is no such doctrine in law of which I am aware.

Ms Barnes: No. It is on the wish list.

Mr. Bernhardt: The power to make a particular regulation can be conferred expressly or it can be conferred by necessary implication, but it is still the case that regulation-makers possess only the power granted to them by the terms of the enabling legislation. There is no body of powers that invariably accompanies every grant of regulation-making authority.

I should also say that reliance on this inherent powers doctrine has become a favourite argument of the Department of Transport of late. Perhaps the department at this point should be explicitly challenged on this matter. If they are simply referring to powers that are necessarily implied, they should say so. Otherwise, they can, perhaps, provide the committee with authority sufficient to establish the existence of this doctrine, which I rather doubt can be done.

Alternatively, the department seeks to find authority in section 105 of the act. This permits regulations generally for carrying out the purposes of the act.

It is clearly in the public interest that notice be given of the repeal of the designation of a public harbour, but this does not make it a purpose of the act to provide that notice. There is absolutely nothing preventing publishing notices like this in the Canada Gazette as a matter of practice. The problem is that there is no authority to impose a legal duty on someone to give notice. I would suggest that this point be pursued with the department in a further letter.

Mr. Macklin: Agreed.

Senator Moore: Mr. Bernhardt, in your letter of June 26, you asked two questions in item no. 6 with respect to the Port of Shelburne in Nova Scotia. I did not see them answered. You ask:

As is the case elsewhere in the Schedules, should this description not indicate what body of water it is that the defined limits lie within?

In addition, I wonder why it was considered necessary in this description alone to state that the line defining the limits of the harbour is an "imaginary" line?

Harbours are defined by shorelines. They are not imaginary. Did we get answers to those questions? I did not see them.

Mr. Bernhardt: I suppose it was taken from the final paragraph that begins "With regard to the points you raise$"

Senator Moore: Which letter?

Mr. Bernhardt: This is the August 1, 2001 letter, on page 2. In conclusion, they write:

With regard to the points you rise under items 2. to 8...we now arrange for appropriate corrections and clarifications...

In the case of the first point, we took that to mean that they were agreeing that they had left out the body of water. In the second point, I think what they will simply do is take out the reference to an imaginary line. Elsewhere in the schedule, they simply talked about a line, sort of a surveyor's line going around the limits of the harbour. Suddenly, when they got to this one, they saw the need to tell us it was an imaginary line. It was simply the case of pointing out that if they do not have to say it is not an imaginary line everywhere else why must they say it here? They were simply going to drop the word" imaginary. "

Senator Moore: It is under miscellaneous amendment. Does someone send a copy of that to you?

Mr. Bernhardt: That will be registered and published. With this sort of minor correction, they can lump many things together. It goes through an expedited process.

Senator Moore: Will you follow up on that?

Mr. Bernhardt: Yes.



(For text of documents, see Appendix, p. 10H:1)


(For text of documents, see Appendix, p. 10I:1)


(For text of documents, see Appendix, p. 10J:1)

Mr. Bernier: Under the "action promised", there are five actions promised with regard to three regulations.



(For text of documents, see Appendix, p. 10K:1)


(For text of documents, see Appendix, p. 10L:1)


(For text of documents, see Appendix, p. 10M:1)


(For text of documents, see Appendix, p. 10N:1)


(For text of documents, see Appendix, p. 10O:1)


(For text of documents, see Appendix, p. 10P:1)


(For text of documents, see Appendix, p. 10Q:1)


(For text of documents, see Appendix, p. 10R:1)

Mr. Bernier: Taken together, the instruments listed under the heading "Action Taken" enact some 31 amendments requested by the standing joint committee.

Finally, 45 statutory instruments have been reviewed and are submitted without comment.


The Joint Chairman (Senator Hervieux-Payette): In that case, they recognized that they must make changes. Should a follow-up be done concerning the timeframe for these changes, since they have recognized that they must make them?

Mr. Bernier: There is always an internal follow-up. There is a bring forward system for all the files.

The Joint Chairman (Senator Hervieux-Payette): What is the generally accepted timeframe in a case like that?

Mr. Bernier: It depends on the nature of the file. A two-or three-year deadline to make changes is accepted for a drafting amendment, for instance to have the two versions comply with each other, where there are no practical consequences for citizens. Very often, the department will ask that the required changes be made when a regulation is amended for other reasons, and this is accepted.

The Joint Chairman (Senator Hervieux-Payette): Two or three years?

Mr. Bernier: Yes, two or three years. If, after a period of two years, the change has not been made, we ask that it be done.

The Joint Chairman (Senator Hervieux-Payette): In this case, what sort of deadline are we looking at?

Mr. Bernier: Concerning which file, exactly?

The Joint Chairman (Senator Hervieux-Payette): Those you mentioned under the "action promised" heading. Where it says that "some ambiguity exists [...] Environment Canada will make the appropriate corrections."

Mr. Bernier: Let us look at the first regulations, SOR/98-217.


The department itself has provided a deadline. The letter from Ms Wright states that the regulations will be amended in the middle of next year. On an issue like that, which is really a drafting issue, that is fine. In the middle of next year, we will then put the file on a BF for March 2002. In March 2002, the file will be given to counsel. Counsel will write a letter saying, "This is what you promised; how are things progressing?" We will then go from there.


The Joint Chairman (Senator Hervieux-Payette): When it is said that there is progress and when people recognize that there is an error, we should know exactly how much time will elapse between the acknowledgment of the problem and its rectification. The changes should not take five years.

Mr. Bernier: Let us now move on to SOR/99-437.


The Agency is currently preparing proposed amendments to the Exclusion List Regulations in order to comply with the commitment made by the Minister in his report to Parliament...

As part of that exercise, these amendments will be made. This was a letter dated October 12, 2001.

We would probably put that on a BF of four months, and then inquire as to progress and so on.

Mr. Lee: Under a quasi point of order, I wanted to reflect back on a decision taken earlier, particularly for the benefit of Mr. Cummins and other colleagues who are obviously busy and did not have enough time to deal with the balance of the committee agenda following the adoption of the motion on the fishery licence issue.

At our next meeting in February, we will be dealing with a draft report involving a disallowance. It is my impression that in adopting the motion the way we have today we have moved off the normal protocol for many years followed by this committee, maybe always followed by this committee. Disallowances usually go ahead based on consensus and not by any dividing or division that goes on here by way of voting. I wanted to signal that it would be my intention to follow the normal protocols and that, while the draft report will certainly be useful, if there is not a consensus reached around the table, we will be using first gear instead of third gear as we move ahead. That is my view. I do not want to go beyond what would ordinarily be a point of order. I am saying this for the benefit of Mr. Cummins and others.

There are huge implications in the revocation or disallowance of a licensing scheme without a scheme to take its place. We have always recognized that on the committee. This issue will undoubtedly come up when we deal with the draft disallowance report. I did not with want anyone to leave here today thinking that we were three quarters of the way down the road on this. There is room for discussion between some of the members informally between now and the next meeting. I encourage some of us to do just that, including involving the minister involved.

The Joint Chairman (Senator Hervieux-Payette): We have several weeks between now and the next meeting. I presume that counsel will come up with both an analysis and a report ahead of time so that we will have time to read them and make up our minds for the next meeting. It is appropriate. I agree with you that we have departed from our usual way of dealing with these matters. That is what politics is all about.

Mr. Cummins: Our concern is that the issue not be delayed any further. Certainly, when we return on February 7, the committee will be made fully aware of the circumstances and will be able to make a very informed decision on how it will proceed. All that has happened here today is that the matter has been pushed along a bit, and for good reason in that it does have a serious impact on people's lives.

Mr. Lee: That is precisely the point, namely, that it has been pushed on in a way that varies from the normal protocol. However, I accept what you have said and I am looking forward to dealing with it in the way that you have suggested. However, I want to signal the divergence from our normal protocol, and having taken it into account and the way the vote occurred today I want you to know that I know that you know that I know.

Ms Barnes: May I add to that, too? I find it quite objectionable that some people were briefed on that and that it was a strategy. We operate around here in the best interests of everyone and there is a way to approach it that was not, and I find that offensive.

Mr. Cummins: I take some exception to the tone, here.

Ms Barnes: So did I.

Mr. Cummins: This issue is extremely important. What you may not understand - and I accept some responsibility for that, but I think the matter has been raised before in the House - is that in 1999, largely as a result of the confusion surrounding these regulations, for the first time in history, there was no commercial fishery on the Fraser River. In the year 2000, there were two and a half days of fishing on the Fraser River, and, again, last year for the second time in history, there was no commercial fishing on the Fraser River. The boats that participate in that fishery have the same earning potential as a lobster boat on the East Coast. The issue is not a new one. These regulations were first put in place in 1993. They were confirmed in 1994. The issue has been ongoing for a long time. The impact of them has been to put the fishery on the Fraser River at the brink. Mr. Wappel heard testimony just a week ago on this very issue and understands full well the importance of the matter.

The Joint Chairman (Mr. Grewal): To reserve the non-partisan spirit in the committee, it is important that we consult each other, as Mr. Lee has said. Since the issue is important to certain members, it seems that it is taking a critical line, and we do not want to draw a line in the sand for the future in this committee. I will always be interested in maintaining the neutrality and spirit of non-partisanship in this committee.

If counsel can prepare the report earlier than usual, then members can read it and make an informed decision before the committee meeting on February 7. We can carry on the consultation and review the report and take more time to go through it.


Mr. Brien: We must learn to live with our political frustrations. It does happen, even if one is a member of the majority government party, that one loses votes; that is part of life. A decision was made. I do not like it when debates that have already taken place are relaunched under points of order.

The Joint Chairman (Senator Hervieux-Payette): Mr. Brien, we are talking about traditions. There are traditions in the parliamentary world. Certain colleagues have said that they do not feel that this committee, which has operated with certain traditions for 25 years and is not partisan in its proceedings, plays tricks on others by voting on issues that have not been fully debated. That is the only question my colleagues have raised. I do not think it is useless to remind people that there are certain traditions this committee respects.

Mr. Brien: I do not share your point of view.

The committee adjourned.

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