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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 11 - Evidence

OTTAWA, Thursday February 7, 2002

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:35 a.m. to consider statutory instruments.

Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) presiding.


The Joint Chairman (Senator Hervieux-Payette): I want to welcome all of our regular members this morning, as well as any new members. We have an extremely interesting and important agenda.

Our witnesses this morning are from the Department of Agriculture and Agri-Food. They are: Mr. Samy Watson, Deputy Minister; Mr. Henry Schultz, General Counsel, Legal Services; and Mr. Terry Hayward, Executive Director, National Farm Products Council. Welcome gentlemen to this meeting of the Standing Joint Committee for the Scrutiny of Regulations. If there are no objections, I would ask you to proceed with your presentations, following which there will be a question period.





Mr. Samy Watson, Deputy Minister, Agriculture and Agri-Food Canada: I have a short statement to make, and then I will answer questions.

We appreciate the opportunity to appear today before the Standing Joint Committee for the Scrutiny of Regulations. We are here at the request of the committee in regards to three levy orders that have been enacted under delegation orders issued pursuant to the Agriculture Products Marketing Act, APMA. Following the committee's review of our substantive reply of November21, 2001, I understand that the committee wishes to discuss three items: the processes whereby Agriculture and Agri-Food Canada manages issues and concerns raised by the committee; issues relating to the referential incorporation; and issues relating to the monitoring and coordination of the activities of the different regional marketing boards.

I shall address each of these issues in my remarks; however, I will only tread lightly in matters of law. Mr.Schultz is able to take detailed legal questions.

In addressing the first point, I want to assure you and the committee that my minister and I, along with senior management and officials of Agriculture and Agri-Food Canada, believe that the committee fulfils an important function in reviewing and scrutinizing statutory instruments by maintaining a watch on the subordinate law made by delegates to Parliament and by applying the criteria for statutory instruments. The committee plays a significant role in retaining parliamentary responsibility for the laws of Canada.

In preparing for today's appearance, I reviewed the history of the relationship between this committee, Agriculture and Agri-Food Canada, and the agencies in the agriculture and agri-food portfolio. I discussed it with my minister. It is apparent that there have been undue delays in responding to the concerns that you have raised.

I want to assure the committee at the outset that my minister and I are of the view that these delays are unacceptable. The concerns of this committee in terms of responsiveness and respect have been heard loud and clear. I want to assure you that my department is fully committed to a new and improved relationship. We may not always agree on issues, but we will work to the utmost of our abilities to ensure the best possible resolution.

I have taken several steps to address directly the committee's objections to the state of affairs, and I am in a position to assure the committee that there are new, effective procedures being put in place for replying to requests in a timely fashion.

First, the parliamentary relations group in my office has been tasked with the responsibility of coordinating and tracking replies to the committee's requests, liasing directly with the Clerk of the Committee, and making regular reports directly to me on the status of committee correspondence. In addition, in my capacity as deputy minister within the agriculture and agri-food portfolio, I discussed with my minister the feasibility and desirability of adopting common portfolio procedures in responding to committee questions and concerns. Accordingly, the National Farm Products Council, Canadian Food Inspection Agency, Canadian Dairy Commission, Farm Credit Canada and Canadian Grain Commission will be part of a standardized approach across the portfolio. Therefore, while the committee will continue to deal with the designated instrument officers for Agriculture and Agri-Food Canada and the portfolio agencies, parliamentary relations will coordinate and track correspondence on a portfolio basis and work with the designated instrument officers to ensure that appropriate timelines are set for responses.

Less complex issues can be dealt with expeditiously. For those issues of a more complex nature, parliamentary relations will ensure that the department and the portfolio agencies advise the committee when a longer deadline for response is required and the reasons for that request for time extension.

In the case of the APMA, for example, longer deadlines may be required for legal issues that require consultation with justice. The issues typically relate to actions taken by provincial marketing boards, resulting in a need for consultations with the boards and provincial officials. As well, resolution of issues to the satisfaction of the committee may require further action by provincial boards. Regardless of the timeline for complete resolution, the department commits to a quarterly status report to the committee for each issue.

I have received assurances from my general counsel that the Department of Justice will support these commitments by undertaking to provide its legal advice on committee issues to Agriculture and Agri-Food Canada in a timely fashion.

As the issues that have brought us here today involve levies orders enacted under APMA delegation orders, I should next like to discuss this act. The Agricultural Products Marketing Act was enacted in 1949 to harmonize federal and provincial authority in regulating the marketing of farm products. Because the powers of marketing boards are set up under provincial authority and extend only to marketing locally within a province, the APMA is used to extend the provincial powers of marketing boards into interprovincial and export trade, thus giving the boards control over their own activities. The boards can also be delegated the power to impose and use levies.

More than 50 years later, there are now 81 delegation orders in effect in nine provinces. Although the act empowers the Governor in Council to make regulations prescribing terms and conditions, no such regulations have been made. The National Farm Products Council has been responsible for day-to-day administration of the AMPA since 1995. The Department of Agriculture and Agri-Food Canada continues to be responsible for policy issues.

The second set of issues that the committee wishes to examine relates to referential incorporation, which is a technique used in the Quebec beef cattle levies order. I recognize that the legal issue in this case is whether incorporation by reference is valid, given the provision of the Quebec beef cattle order that the ``Fédération des producteurs de bovins du Québec'' fix and impose levies. We believe that the approach used in the beef cattle levies orders is within the scope of the authority delegated.

The last set of issues I wish to discuss relates to the monitoring and coordination of the activities of the different provincial marketing boards. When a provincial marketing board submits to the National Farm Products Council a proposal for a new or amended delegation order, the proposal is sent for review and comment to Agriculture and Agri- Food Canada and the council.

The council then steers the delegation order through the federal regulatory process on behalf of the provincial board. These steps include the following: the legal review and blue stamping by the Department Justice; a recommendation from the Minister of Agriculture and Agri-Food to the Governor in Council; approval by the special committee of council; registration with the Registrar of Statutory Instruments, and publication in the Canada Gazette.

Once a delegation order is in place, the provincial board exercises delegated authority by enacting instruments that regulate marketing or impose levies. There is no federal involvement in the implementation or operation of the activities under that instrument, for example, the collection and spending of levy revenue.

Any risk of a court ruling that an instrument enacted under an APMA delegation order is invalid rests with the provincial board making the enactment. It is therefore in the interests of provincial marketing boards to minimize the risks of an adverse ruling.

When the standing joint committee has questions or concerns about marketing or levy enactments, AAFC provides the correspondence to the responsible provincial marketing board, including the departmental responses. Correspondence is also shared with provincial government officials. Only those boards can revoke, amend or replace the instruments they enact under APMA delegation orders. Ultimately, the Governor in Council could revoke authority that has been delegated to a provincial board, but this is not an action that would be considered except in extreme circumstances.

Let me conclude my remarks by restating our commitment to improved management of issues raised by the standing joint committee. Committee members have received a copy of the new procedures that will be used by the Department of Agriculture and Agri-Food Canada and the portfolio agencies. I trust that my remarks have satisfactorily addressed the topics of concern in the committee, and we would be pleased to answer questions you may have.

Mr. Lee: Mr.Watson, you have indicated somewhere along the line that you and your colleagues understand the relatively important function of this committee. I assume that the delays we have encountered over the years have nothing to do with your view of the role of the committee; am I correct?

Mr. Watson: It is certainly not my view of the role of the committee. That is why we have instituted these new procedures, to ensure that is not misunderstood.

Mr. Lee: We will probably have an opportunity to test the new procedures over the weeks to come.

Mr. Watson: We would be happy to receive comments on the new procedures.

Mr. Lee: One of our concerns will be our ability to fulfil the role that Parliament has delegated to this committee. We must be able to reach out and communicate with the department, branch of government or agency that has the delegated authority. Normally, we do not have difficulty doing that, but we certainly have had difficulty dealing with those procedures within the policy envelope that you work in. You have acknowledged that we have had that difficulty.

I was interested in your description of what you refer to as a ``delegation order.'' Can you describe to us the authority of your department to make a delegation order?

Mr. Henry Schultz, General Counsel, Legal Services, Agriculture and Agri-Food Canada: The delegation orders are made under the Agricultural Products Marketing Act, which gives authority to the Governor in Council to authorize any provincial board to exercise powers of regulation in relation to the marketing of agricultural products locally within the province, to regulate the marketing of that agricultural product in interprovincial and export trade, and for those purposes to exercise all or any powers like those powers exercisable by the board in relation to the marketing of agricultural products locally within the province.

This is an authority conferred on the Governor in Council to delegate authority to regulate interprovincial trade to a provincial board. The Minister of Agriculture and Agri-Food Canada is responsible for this act and is, accordingly, responsible for the recommendation of orders under this act.

Mr. Lee: Subject to any issues that we may see on the technical side, that sounds fairly straightforward. In the world of power transfers, constitutionally or otherwise, between the feds and the provinces, perhaps that is a part of our new order. One of our difficulties will be dealing with the party that makes a regulation under the delegated authority. We have had difficulty in this file trying to discover who to deal with. At one point, your group was saying that we should deal with the farm products council in the province, and then it was suggested that we deal with the authorities here. Our difficulty is having a reasonable relationship to deal with problems that our counsel and our staff find in the regulations.

Is it your view that we should meet with one of the provincial bodies, so that they are familiar with the linkage? Or would you like to tell us that there is not a clear enough linkage and we do not have a role to play there?

Mr. Watson: I think that you have a linkage with federal statute. In that case, we have designated instrument officers that should be in the position of assisting this committee in dealing with this issue of delegated authority.

Mr. Lee: That would be your advice to the provincial bodies if they asked?

Mr. Watson: We work with the provincial bodies to ensure that, in terms of moral suasion, what they do is appropriate.

We have section 3 of this act, where, as I indicated in my remarks, under extreme circumstances we could revoke the delegated authority. That has never happened. Therefore, I would suggest that you deal with whoever is responsible for the Agricultural Products Marketing Act. In the case of Agriculture and Agri-Food Canada, my department is responsible; in the case of portfolio, others are responsible; and in respect of the policy aspects and administration, it is the National Farm Products Council.

Mr. Lee: I shall ask the chairs to invite counsel to follow up on that because they may have a question in respect of that relationship issue. Before I fade into the record, I shall address one of the more substantive issues concerning the specific items of the regulations that we have been dealing with.

I take it we do not have an agreement. Our committee, through its counsel, is not in agreement with you, or you with us, on what we will do with these particular regulations— in particular, section 5 of the levies order that has always been on the list of issues. We believe that should be amended to clearly articulate that the scope of the order applies only to individuals in the province of Quebec, in this case.

Mr. Schultz: I can see how an amendment of this kind could clarify matters, but I doubt that an amendment like this is, strictly speaking, necessary. To that extent, I am in some slight disagreement with your counsel.

I do not think an amendment like this is strictly necessary because, as a result of the powers conferred on the Fédération des producteurs de bovins du Québec under the delegation order, the levies order could only apply to buyers located in Quebec. Section 4 of the delegation order authorizes the fédération to fix fees in relation to the powers granted under section 3 of that order; and section 3, in turn, only authorizes the federation to exercise powers ``with respect to persons and property situated within the Province of Quebec.''

It follows, then, that the definition of the word ``buyer'' could easily be read down to mean a buyer located within the province of Quebec. I would admit that an amendment like this would clarify, but I think it would be essentially a housekeeping matter. I do not think it is substantively required and, as a result, is not invalid.

Mr. Lee: I agree that it is arguably an issue of cosmetics, but from our point of view and from the point of view of citizens who read these kinds of things — they are not all Laval-trained lawyers — the face of it should show the scope of it. On the face of it, this regulation seems to apply to anyone. That is our difficulty with it.

I do not disagree with your legal analysis that, in the end, the regulation could never be made to apply to anyone outside the province of Quebec— I do not disagree with that. I would ask that counsel be permitted to follow up on that issue I raised earlier.

The Joint Chairman (Senator Hervieux-Payette): Before I give the floor to Mr.Bernier, perhaps we could have a point of clarification. I have the impression that you play the same role in respect of regulations adopted at the provincial level that we play in respect of regulations adopted at the federal level. In fact, if they comply with the legislation, you look at whether or not they comply with the regulation. In this instance, there is a need to find a process where you are not only comfortable but we are also comfortable, so that we can discharge our obligations.

I want to ensure that I understand the process, because there are many boards involved. There are other areas where we have delegated this power to the provinces. Since I am a strong federalist, I wish to clarify it to ensure that people such as Mr. Lee understand. It is important that the rules are apparent and very clear.

In that respect, I ask Mr.Bernier to speak. However, if you, Mr. Schultz, have comments, that is fine.

Mr. Schultz: I am not sure that our situation is analogous to the role of this committee. This committee has the right to scrutinize regulations passed under federal authority and has, among other things, an extreme power to disallow regulations.

I do not know that our powers are as great in this. When the legislation is delegated, it is down to a body that is vested with its own authority. At best, short of revoking the delegation order in question, the federal government can really only recommend changes, unless the government has chosen to impose conditions under section 3 of the APMA.

The Joint Chairman (Senator Hervieux-Payette): That means that if you disagree, we are the ones who will disallow the regulation, because you are not going to intervene with the various provinces to which you have delegated the authority.

Mr. Watson: Let me clarify that. We will pass this comment on. It is a question of whether we will talk to the provincial marketing board. However, we will pass these comments on.

If I may return to the last point of Mr.Schultz's comments, in respect of this delegation order the Governor in Council did not attach any conditions to it, in this particular case. That gives us no more than our ability to be able to suggest and to explain to them the reasons clarification is needed, so that a citizen reading it does not have to be a Laval-trained lawyer to understand the boundaries of the particular order. We will do that.

Had a condition been placed on it that gave us the power to change it ourselves, certainly we would have exercised that. The power that is given to us in the APMA under Governor in Council is actually to revoke the entire delegation order, which is pretty extreme.

The Joint Chairman (Senator Hervieux-Payette): If the regulation is invalid according to our own legislation, we are the only ones that can exercise the power of disallowing the regulation.

Mr. Schultz: That is an interesting point. I do not know that this committee would have the authority to revoke a regulation such as this made by a provincial board. Unfortunately, the most we can do, as the deputy minister has indicated, is exercise suasion and, if necessary in an extreme case, revoke the delegation order. We can and have passed down the comments of this committee.

The Joint Chairman (Senator Hervieux-Payette): I shall ask our expert to help us clarify what can be done in this case.

Mr. François-R. Bernier, General Counsel to the Committee: For the benefit of the committee, I would confirm that in respect of bylaws or regulations made by provincial marketing boards the disallowance power that this committee has does not allow the disallowance of those bylaws or regulations. As members know, the current procedure is limited to disallowance of regulations that are made either by the Governor in Council or by a minister of the Crown. Obviously, in this case we are dealing with regulations made by provincial marketing boards.

That illustrates, if you will, the flaw that this committee has long pointed out in the current disallowance procedure. Obviously, if the disallowance procedure did extend to these bylaws, one might see relatively quicker action on the part of provincial marketing boards to effect certain amendments.

For the witness, I should like to clarify an item. Mr. Watson made reference to the policies in respect of the Agriculture Products Marketing Act— issues of policies being within the domain of Agriculture and Agri-Food Canada and the day-to-day administration being within the domain of the National Farm Products Council. This has been in question and so we have been sent back and forth. Does correspondence relating to provincial marketing board bylaws go to Agriculture and Agri-Food Canada, or should it go to the National Farm Products Council?

Mr. Watson: I believe that it goes to the designated instruments officers, right now. There is one in each of the organizations.

The procedure we are laying out is that, regardless of where your correspondence goes, it will also be dealt with in terms of the department managing the entire portfolio responses so that you are not bounced back and forth and so we are not aware, in a portfolio sense and on behalf of our minister, that we are not responding as accurately as we can. We will be coordinating as a portfolio matter.

Mr. Bernier: Let me ask this, then: Who is the DIO?

Mr. Watson: For?

Mr. Bernier: In relation to bylaws made by provincial marketing boards, is it the Deputy Minister of Agriculture, or is it Mr.Hayward?

Mr. Watson: For APMA, I am the DIO.

Mr. Bernier: Thank you.

Mr. Watson: Currently, for CFIA issues, for example, it is another individual.

Mr. Bernier: The other point on which it would be beneficial to have a clarification relates to this reference you have made to the department using moral suasion. What does that consist of? What do you envisage to come under the chapter of moral suasion?

In this case, in two files, we have had from the department an assurance that the correspondence from the committee has been shared with the provincial marketing board. That does us no good at all in terms of actually seeing those amendments made.

Certainly 15 or 20 years ago, as I recall it, the National Farm Products Council took responsibility for ensuring that amendments that it considered to be required were actually made to the bylaws. It appears that at that time it went beyond just sharing correspondence with provincial boards.

Perhaps the witnesses could expand on this moral suasion and what measures fall within that description.

Mr. Watson: If I understand this conversation correctly, we just went through that. This committee does not have the power to disallow that. If we did have particular conditions attached to the original delegation order, we would exercise those conditions. The delegation order as issued does not have conditions attached to it.

Moral suasion is more than just passing on the correspondence. It is also explaining the rationale of why this is important, as was clearly explained by committee members. We shall continue to do that in an effort to have the provincial marketing board do the change that is required to provide greater clarity to the scope of authority of this particular order that is in question. It is a discussion. It is more than just passing on the correspondence. It is trying to explain the clarity of it, et cetera. Moral suasion is what it is. It is more than just passing correspondence.

Mr. Bernier: Does it extend to nagging?

Mr. Schultz: We must remember here that we are dealing with fairly sophisticated administrative bodies. When they receive correspondence from a federal body like the National Farm Products Council or the Department of Agriculture to the effect that they have enacted an order that may be invalid or may be inappropriate, these bodies must be aware that they do so or they continue to keep their enactments in place at their own risk.

As we have said, the federal government has no authority currently. Short of revoking these delegation orders, we cannot make these boards amend their orders. However, if we see problems and inform them of them, it is basically incumbent on those boards to amend them accordingly. By not amending them, they do so at their own risk, as it were.

Mr. Bernier: Where the department does agree, can we go to beyond just simply sending a copy of the correspondence to the board or the Department of Agriculture? Perhaps, indicating and formulating a recommendation to the provincial marketing board and saying that we think this should be amended or that this bylaw should be amended in this or that way?

Mr. Schultz: Clearly, though, even if we did send a recommendation— and I do not necessarily disagree, as we discussed here, that this would be a cosmetic change that would provide greater clarity— if they choose not to do it, we have no other authority beyond that. I think you agree with that.

Mr. Bernier: Yes.

Mr. Watson: If you are asking us to send them a recommendation for this housekeeping order, we will do that. If that is the bottom line in terms of the request, we will send a recommendation.

The Joint Chairman (Senator Hervieux-Payette): Are there any comments from the members of the committee on this procedure of going beyond making a comment that the regulation is not necessarily in compliance and making recommendations on how to correct it so that this committee is making substantive changes to ensure that the regulation is in compliance with the law?

Mr. Watson: I want to clarify. We would send the recommendation; however — and I think the committee's counsel agrees — while we may send that recommendation, as the delegation order is now construed, we do not have the power to cause them to change it. We cannot force them to change it. If we agree that it is not substantive, to the point that we would recommend for Governor in Council to revoke the entire delegation order and therefore all the orders, short of that, we will send the recommendations, but we do not have the power to make them actually cause the change.

Senator Moore: I have heard this phrase ``moral suasion'' here a few times this morning, and I do not know what that means. You are talking about making a recommendation to these provincial bodies. Mr.Schultz, you have said that if they do not act pursuant to the recommendation, they do so at their own peril. What does that mean? I am hearing that you do not have any authority to take further action if they do not do as you recommend. Where is the penalty, the peril, here?

Mr. Schultz: Let us take a hypothetical example. We have delegated an authority down to a provincial marketing board. We find out that they have issued some sort of order that is invalid— for example, a levy order that is invalid. They are out there collecting money without proper authority. As the deputy minister has correctly said, we would not have the power right now to make a board established by laws of a provincial legislature change its laws; however, by telling that board that they have an invalid order and suggesting to them that they make a change, that board is then alerted to the fact that they have passed something that is potentially invalid. Knowing that, they realize that they are running a risk that someone who is required under this order to pay a levy may challenge the board's authority to take the levy. A cattle producer who is paying a levy may take the provincial board to court to challenge the validity of their order. That is what I am saying.

Moral suasion is more than simply just telling them that there is a problem. It is giving them the opportunity to fix the problem, knowing that if they do not do so they run the risk that one of their own stakeholders, as it were, may challenge them in a provincial court.

Senator Moore: Where is the legislative leadership here? In that hypothetical example, you are saying: ``Well, the peril is that some member might decide to go through the time and expense of making such a challenge.'' Who will take the initiative to say, ``That is invalid, and it should be cleaned up''? Is it your department? Basically, you are saying, ``Let us wait to see if some member wants to take this on.'' Where is the responsibility here? Where is the leadership?

Mr. Watson: With all due respect, I do not think that is what has been said.

Senator Moore: I just heard him say it.

Mr. Watson: No. I do not think so.

No. Let me clarify that. What I heard and what I said as well is that we would make the recommendation to that body. The other part, which your counsel also agrees with, is that even though we make that recommendation the provincial marketing board may choose not to change it.

What Mr.Schultz added to it is that if there were a legal challenge after we made that recommendation, the fact that we had made that recommendation would certainly work against that provincial marketing board in that legal challenge that would be made.

Senator Moore: Yes, if some member brought a challenge. That is what he said. If that does not happen, then the invalid law or levy sits there. The process sits there, invalid, as you have pointed out, but it still sits there. I think that is wrong.

Mr. Watson: Well, senator, that goes to the heart of whether or not the delegation order had any conditions made to it. Governor in Council made no conditions on that order, so we are following it as Parliament passed it.

Senator Moore: That is unacceptable. That is terrible.

The Joint Chairman (Mr. Grewal): I appreciate the comments by the deputy minister and by general counsel. Looking at the broader picture, I hope that, with the new protocol, we will make some progress in the future, although I am skeptical about the progress that we can hope to make in the future. Looking at the past record, the will of the Parliament has been deliberately ignored over a period of time. For the last five years, the response from the Department of Agriculture and Agri-Food Canada as well as from the National Farm Products Council has been dismal. I believe that a new protocol will accomplish more in the future. It has been a continuous problem to harmonize the exercise of provincial and federal authorities, and it has been a continuous challenge, as well as a problem for the committee, to best deal with the provincial commodity boards as well as the agencies. I believe that this issue will be resolved.

A lot of time has been wasted shifting the response from the department to the counsel. I should like to hear something from Mr.Hayward about his response when the responsibility has been shoved from department to counsel. Has that issue been sorted out? Is it only the DIO, that is, the deputy minister, with whom we are dealing and the executive director will be responding through the DIO? Is that the understanding now?

Mr. Terry Hayward, Executive Director, National Farm Products Council: With the protocol that is being put in place and that we are working with now through the deputy's office as the DIO for APMA, yes, the National Farm Products Council would receive things of an administrative nature. The department would respond directly if policy issues are being raised here.

Mr. Bernier: Do the witnesses have a view on whether the situation might be helped if, in fact, the disallowance procedure currently in place were applicable to regulations such as those made by provincial marketing boards?

Mr. Watson: You are asking whether I have a view on that?

Mr. Bernier: Yes.

Mr. Watson: I beg not to have a view on that. That is outside my area of competence as to whether or not that is something that can be extended to provincial marketing boards. I am not sure exactly how you would do that under law.

Mr. Bernier: With respect, it is within your area. Let me explain. You know the local marketing boards. I am asking you the following: With your experience of provincial marketing boards, do you think it might assist those boards in complying more readily with the requests of this committee if they knew that this committee had the power to disallow their regulations?

Mr. Schultz: To put this in context, it does not take a Laval-trained lawyer— speaking as a McGill-trained lawyer, for what that is worth— to say that this question must be treated as moot. I find it hard to conceive how a disallowance power like the one that this body exercises could be said to affect the powers of a provincial board established by a provincial legislature. I do not see how this question is worth pursuing. I would have to think about it further, but I cannot see how this board could have the constitutional ability to do what you are suggesting.

Mr. Bernier: As a Laval-trained lawyer, Mr.Schultz, let me try to help you with this. Those provincial marketing boards are exercising federal powers, are they not?

Mr. Schultz: Yes.

Mr. Bernier: To me, it sounds as if certainly the federal Parliament has the authority to provide for the disallowance of federal delegated legislation.

Mr. Watson: May I ask a question? I am not trained in either of these schools, but I should like to ask a question of counsel for the clarity in terms of how to administer this. We are ignoring the fact that these delegated powers were passed by Governor in Council. It is the government that chose not to attach any kind of condition to this particular order. I am not sure where any parliamentary committee plays into that. I should like some clarity on that. Remember that we are dealing with my responsibility in this case to the Governor in Council. The government passed a particular order with no conditions attached. I do not know how to go about attaching conditions after Governor in Council has done that. This is a question.

Senator Bryden: At this stage, I believe that we are being unfair to these witnesses. This is not an issue that will be resolved at this meeting, as to whether there is constitutional ability for ability for us at some point, if properly done by Parliament, to interfere in a situation with a board that is set up by a province under provincial jurisdiction, even if they are implementing comparable things to what we are doing in other provinces. It is not a simple matter and I do not think these witnesses should be asked to go on the record as to their opinion. They are not expert, nor do they not claim to be expert in this area.

I think we should move on. In my opinion, they have given the best explanation that they can give. They are going as far as they can to use persuasion to accomplish that purpose. They have no authority to force these people to do anything. If we want them to do that, the Governor in Council will have to put conditions on this delegated power. For my part, I am prepared to accept that as their answer.

The Joint Chairman (Senator Hervieux-Payette): Other questions? We have a protocol in front of us and we need to address this.

Mr. Lee: The regulations that we have difficulty with have not been mentioned here specifically today. We understand the protocol. We thank the witnesses for developing that and putting it in place. I hope it will work well, but I gather there has been no progress made on the issue of the regulations at hand and that we have a standoff. Is that the case? May I ask Mr.Watson?

Mr. Watson: The questions have been about one issue. I think you asked us for three issues. We addressed one in terms of the protocol that has, perhaps, received some skepticism, but I think it is a nice try. We will make sure that it works. On the second one, we agreed that we would make a recommendation in writing beyond the discussions that we have had— not just simply passing correspondence but making an actual recommendation on the housekeeping change that you requested. We will do that. That is movement and we will continue to do that in terms of providing recommendations for the reasons that we have discussed in this committee.

Another question had been referred to us that members have not chosen to ask any questions about; it concerned referential incorporation.

Mr. Lee: The question of incorporation of reference always comes up. That is a maintenance item for us.


The Joint Chairman (Senator Hervieux-Payette): If I can sum up our discussions, your proposed protocol will be put to the test. You are proposing that new procedures be put in place, that the recommendations of committee members be taken into account and that follow-up procedures be improved.

As for which parliamentarians have authority over subordinate legislation, it would appear that no parliamentarian has authority over regulations adopted at the federal level. We could put the protocol to this test to see whether this pragmatic - and unlawful - approach works.

I concur with Mr. Bryden. There is a matter of politics behind all of this. Two orders have been made. One authorizes this committee to scrutinize regulations, while the other allows for the delegation of regulatory authority. At some point, it is unclear which direction we should take. If there are no objections, we could follow Mr. Lee's suggestion. Would you care to make it a formal proposal, Mr. Lee?


You make a proposal to at least try the protocol and add the recommendation. We will come back and see if it works. You will try this with the three 1993 pieces of regulation and make the recommendation for these three, unless you have already done so, in terms of the substance, not in terms of telling them that it does not work, but going a little beyond and telling them why it does not work and how a remedy could be attached to these three regulations, with regard to beef cattle, maple syrup and cattle in P.E.I. In other words, start the new procedure.

Mr. Watson: If I can make one amendment to the last issue, we have discussed one here that concerns maple syrup, the one you were asking questions about.

We have agreed to that, but we would not be making recommendations where we have not finished our discussions. One of them concerns incorporation by reference, which we have not discussed here. We would not be making a recommendation on that because our views vary significantly on that issue. I want to make it clear to you that where there is agreement or where we feel, without this committee getting involved, that there is a particular issue with a delegation, we will make a recommendation to those boards. However, I am not necessarily agreeing that we would make recommendations on all three, because we are not necessarily in agreement on that particular issue in this committee.

Mr. Bernier: I think Mr. Watson is entirely right. The incorporation by reference still requires some correspondence back and forth. I am sure that the department will come to the right view and accept that the committee is right, but that will be in the coming months.

Mr. Watson: There is one other thing this committee has done. It has certainly renewed in me a real interest in that particular issue. I think that our correspondence will be more interesting to you, Mr.Counsel.


The Joint Chairman (Senator Hervieux-Payette): Committee members agree then that the three regulations mentioned may be the focus of a recommendation further to our discussions and that we may receive a report on these issues at some future date. Thank you all. We have a consensus on procedural matters.



The Joint Chairman (Mr. Grewal): Members, we will move on to the next item on the agenda. The next item is consideration of a draft report. I hope the members have gone through the draft report. Are there any comments?

Mr. Lee: I hope there are a few comments around the table, but this is a well-drafted report. I think it fairly and concisely records the view of the committee in relation to these unfortunate assessors rules.

In the background now, the practical side of this, apparently the government is moving to make the corrections replace the rules. It looks like it will fall into good order.

However, I think it is really important for us to go on the record to show where we believe the executive has been offside for a long period of time, in excess of 10 years, in a zone of illegality. What makes it even more glaring is that the pawns on the chessboard in this were actual judges. In effect, if we all accept the views of the committee, we have inducted into a regime of technical illegality a number of federal judges. They would not be too pleased to know that. It may be possible that none of them really knew about it and paid attention to it. It may be that those who acted under the authority of the statute and the regulations here might not have been aware that their appointment was deficient. They might not have been aware that, in our view, the failure of the government to rectify this glaring gap in the regulations was there. They might not have been aware of that.

However, counsel has quite properly flagged these issues and stated them very clearly. I will not quote, but I had hoped that the record here today would show some of these thoughts.

One of the last points that counsel has drafted on our behalf is our apparent perception that a deputy minister was of a view different from that of Parliament and the deputy minister proceeded to not do something because he or she thought that was a better way to go. That attitude persisted for a period of time under the Pesticide Residue Compensation Act. That is a glaring flaunting of the legal authorities constitutionally in this country. The report states that it would appear that ``the will of Parliament was deliberately ignored because senior public officials were of the opinion that the amendments were ill advised.''

In voting for adoption of this report I, of course, am happy to adopt the words ``is very disturbing...the will of Parliament has been thwarted through the inaction of the Executive.''

By doing this report, we place on the parliamentary record for all to see, including those judges who probably will not get around to reading it, our view of this. Even though the matter is about to be cleared up, cleaned up, fixed up, we are just doing our job. We have not disallowed, not that we would, not that we could. We are just setting the record straight. It is hoped that it will not happen again.

I move that we adopt the fifth report, if it has not been moved. However, I hope there will be other comments.

Mr. Bernhardt: For the sake of completeness, I would point out that there are two minor grammatical corrections that would be made to page 10 of the report. In the English version, in the eighth line on page 10, the word ``had'' should read ``has.'' In the eleventh line, the word ``is'' should read ``to be.'' Those are not substantial changes but are needed purely for grammatical reasons.

The Joint Chairman (Mr. Grewal): Is there consensus in the committee to adopt the report?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): The report is adopted.





The Joint Chairman (Mr. Grewal): Let us move now to the sixth draft report. Before there are any comments on the sixth report, I should like to make a few things clear for the information of the members. The last time this committee met there was lots of anxiety, interest and enthusiasm on this particular issue, which has dragged on for more than an acceptable amount of time. At that time, a motion was moved and we had to go to vote.

What happens normally in this committee is that we build a consensus. This committee works a little differently from the rest of the committees in the House, as well as in the Senate. We work on consensus building. At that time, we had a vote and it was decided that we would move to the disallowance report.

Members know that it takes time to move toward accomplishing the objectives of the committee. Having said that, a crucial step was probably skipped when we decided that we would be going to a disallowance report. That step was that we had an option, based on how the committee has been performing in the past and based on the tradition of the committee, to prepare an ordinary report demanding a comprehensive response from the government, like the fifth report we have just discussed. That step is prior to disallowance.

I should like to put before members the option of revisiting this matter or ask members whether we can think of demanding a comprehensive report from the government before we go to the disallowance report.

Those are my comments. I invite further comment from other members.

Mr. Cummins: As you suggest, Chair, this issue is of some consequence. I brought the issue to the attention of Mr.White, my colleague who was on the committee back in 1996. I pointed out to him in a memo what I think is the nub of the issue, that is, the power the minister has derived from, and cannot go beyond, the Fisheries Act in regulations; nor can it go beyond the federal constitutional power, which does not extend to creating exclusive fisheries. That idea is not new. It has been an understanding in the legal system as we understand it from the time of the Magna Carta. Indeed, in a letter to Sir John A. Macdonald from A.W. McLelan, the acting minister of marine and fisheries many years ago, Mr. McLelan noted that ``fishing rights in public waters cannot be made exclusive excepting under the express sanction of Parliament.'' The issue we are dealing with is one of longstanding understanding.

The department has been fully aware of the significance of this issue, prior to but certainly on June 2, 1997, where the subject of the memo from a Ruth Grealis and Ian C. MacRae — counsels to Ted Gale, who was a director general of Fisheries at the time — was ``Cummins v. R., et al and possible regulatory amendments.'' At that time, counsel for the department advised the department that if I was successful in my challenge of the provisions of the Aboriginal Communal Fishing Licences Regulations the department had better be ready to change the regulations. The department has been aware of these issues for a long time.

I think that is an important consideration for folks who may not have been here or who may not have an understanding of the issues that we are dealing with this morning.

I am not a Laval-trained lawyer. I am coming at this as a gillnetter from British Columbia; hence, some of the language I use may not be entirely consistent with that of my more learned colleagues.

In discussing this issue, I should note that the committee's hands are not entirely clean in this matter when it comes to moving this important matter through the process. Back on January 3, 1997, counsel was asked to review this matter. On March 20, 1997, a report was prepared for the committee by general counsel. It was not until November 6, 1997, that the committee considered the counsel's report and decided to write the department. On December 9, it sent a letter to the department. No reply was received. This is going to June 11, 1998. There had been no reply received from the department at that time. Therefore, the committee decided to write the minister, but no letter was ever sent.

My colleague and friend, Mr. Lee, was the chairman at that time, and perhaps later he will advise us why the letter was never sent. Unfortunately, that is the situation.

On November 23, 1998, the department finally did reply. In March, 2000, the committee considered the department's reply and decided to write the letter. Again, the letter was not sent until the following September. We have these ongoing, great gaps of time. I could provide details of that, to show you that time after time there have been huge delays between the request for a letter to be sent and the fact of a letter being sent.

That fact is totally inappropriate, because this issue strikes at the core of the integrity of this place, that is, the laws and regulations that we enact should be seen to be lawful and should, in fact, be lawful. When we are aware that especially those acts that affect ordinary Canadians are not, and when they understand that those laws may be less than accurate or legal, it is offensive in the extreme.

On the issue of time, counsel for the committee noted and reported to committee — and this was in the June 11, 1998, meeting — that we ought to have sought to obtain a reply from the responsible department on a priority basis. Unfortunately, it appears that some prodding may be necessary for this to take place. I think counsel hit the nail on the head there, in the fact that the department has been most reluctant to act on these issues in an appropriate and timely fashion.

We should consider the notion that, in matters where government is dealing with Aboriginal issues, the courts often refer to the notion of ``the honour of the Crown.'' In other words, when the government is dealing with people, it should not be playing fast and loose with the rules. At that point, of course, the government is talking about Aboriginal people. However, I would suggest as well that when government is dealing with ordinary Canadians, which is what we are talking about here, we are talking about people who have an investment and earned their living from the fishery. When government is dealing with ordinary Canadians, it should not be seen to be playing loosey-goosey with the rules. It should be upfront, and what they do should be entirely legal and appropriate. That is not the case here.

This issue has been before the committee since 1997. The Department of Fisheries and Oceans has been aware, as I reported to you, that it had to change these regulations since 1997. It is no secret that there is a problem here. In fact, I would suggest that the department was aware that these regulations were flawed far before that, at least two years before that, when we started our protests on the West Coast protesting these regulations. At that point, our justification was that the regulations were illegal and that the minister was exceeding his authority.

There is no reason to delay this matter any further. Mr.Chairman, I would move that this report be adopted as presented, and presented to Parliament in accordance with the appropriate regulations.

Mr. Lee: We have moved from preliminary comments now into a motion.

The chair has noted that our decision at the last meeting to ask counsel to prepare a report with a disallowance occurred in a way that varied from the way our committee normally operates. We have not maintained in place a notice rule requiring motions to have a notice. We operate pretty collegially here; we do not operate by surprise or bushwhack. Through happenstance — no malevolence, no ill will — at the last meeting, an extraordinarily large number of interested members showed up, were signed in, and a motion was moved without the steering committee being aware of it, without any notice, and counsel was instructed to prepare a report.

All of that is fair. Mr. Cummins has spoken on this. He is an advocate in relation to an issue that involves a constituency that he represents that is totally legitimate and fair, and there are other members in the House and other members of the Senate who may have a similar view on the policy issue. However, on this committee we must, and we always have, distinguish between the policy issues and the legal issues. This committee has a mandate to deal with the legal issues, not the policy issues.

As a result of what happened at the last meeting, this committee did not have an opportunity to complete what for us is a fairly routine completion of an exercise, and that is to exhaust all of the positions put forward on paper. We do not usually have witnesses here, as we did today. We usually are able to accomplish the legal objectives, the analysis through correspondence, and in this case, just prior to the last meeting, we received a letter from the minister.

Without trying to analyze what was in the letter, it was a letter. Whether or not it addressed all the issues completely is another issue. However, we got a letter, there were some positions put forward, and we did not have an opportunity as we normally do to exhaust all of the dialogue, and we have still to do that. There might even be a view here to calling the minister. It is still an issue. This issue was just as important as other issues that we have and are near the top of our list of difficult issues we have to deal with.

We have not had an opportunity to discuss the implications of a disallowance. Whenever we do a disallowance, we have always taken into account the ripple effect — the implications of a disallowance on the street. We are not just dealing with a legal issue sometimes. When we disallow a regulation there are real practical impacts, and sometimes the impacts are potentially huge, so much so that we defer on a disallowance. We say we have to tackle this in another way because the implications of the disallowance are greater than we think are merited by the weight of the issue.

We do not want our legal analysis to overwhelm the real life politics. In this case, Mr. Cummins urges us to allow the real life policy and politics issues to, in my view, overwhelm the legal process that we normally follow here. I urge upon members the need to allow the committee, our counsel, more time to exhaust in our normal protocol the dialogue with the department. We may end up with the same result, with a zero or minus, but I think we should complete the analysis, complete our process, consider the implications of a disallowance. Do not forget that this is the nuclear option, and we do not normally move to it until we have exhausted all of our positions.

Mr. Cummins has moved this. I would have preferred a consensus decision to complete the correspondence with the minister and bring the matter back within 30 days, or even call the minister without putting it to a vote. That would have been my preference. That is the way we usually operate. However, if we have to have a vote, I shall vote against this, and I hope members will vote similarly.

Mr. White: Mr.Chairman, the record shows that I was actually the person who raised this issue more than five years ago now, in January, 1997, when I was on this committee. This was concluded in March of that year, almost five years ago, despite the fact that these regulations were inconsistent with the Fisheries Act.

I was on this committee at the time, as was Mr. Lee. I must say that I am terribly disappointed to hear the sorts of things that Mr. Lee has said today, because Mr. Lee was not a member of the committee who would have said those sorts of things that many years ago. He would have wanted to see the legal and the correct thing done in this case.

There is no doubt that these regulations are completely inconsistent with the Fisheries Act. When Mr. Lee says that we should not be too worried about the politics of this issue but we must worry about the legalities, he is absolutely right, but tied in to the illegality of these regulations is the fact that they have had an enormous impact on people's lives. They have had an incredible impact on the livelihood and living conditions of people on the West Coast for five years.

I do not believe that it has no more importance than any other issue before the committee. In all the issues that I have dealt with in my time on this committee, there is not one that has had the impact that this one has had in terms of the number of people and in terms of the long-term prospects for the government when these regulations are struck down and reparations have to be made.

Mr.Chair, I would urge that we get on with this job, disallow the regulations and put the government in the position where it has to deal with the issue. By delaying it one more day, one more month, there is an unacceptable impact on people's lives. That is the position I shall be taking today.

Mr. Pankiw: With all due respect, Mr. Lee is talking out of both sides of his mouth. He is saying that we ought to deal with the legality of it and that this committee is not concerned with policy. That is what he said. He is right. These regulations are ultra vires the act and should be revoked. They should never have been implemented in the first place. The first time the matter was brought to the attention of the minister, the regulations should have been revoked because they are illegal. That is the issue. At the same time, Mr. Lee says there are practical implications we must consider. Now he is talking policy. Which is it?

We all know which it is. The fact is that these regulations are illegal and should be revoked. They have been in place for five years, and that is five years too long.

Since he opened the door on the practical implications, I was just reading in the National Post today that in 1927 the federal government announced regulations to reduce the number of licenses held by Japanese salmon fishermen by 10 per cent a year. In 1938, they implemented regulations that required Japanese to row their boats when non-Japanese were allowed to use powerboats. In the Second World War, they seized boats from Japanese people. The article is about a Japanese guy who cannot fish now because he is not an Aboriginal.

If you want to talk policy, the federal government is advocating what are clearly racist policies, and they are having a serious impact on people's livelihood, not to mention the fact that they are discriminatory.

Leaving policy aside, they are illegal. We voted in December to disallow these regulations. This report must go forward. It would require unanimous consent not to. It is not a matter of voting ``no,'' Mr. Lee; it is a matter of us finalizing the draft report and our chairmen tabling it in Parliament.

The Joint Chairman (Mr. Grewal): Are there any more comments?

Mr. Pankiw: That is more than a comment; that is a statement of fact. This report is going forward. It would require unanimous consent not to, and I am not giving it.

The Joint Chairman (Mr. Grewal): I heard your comments. I am asking if any other members would like to contribute.

Mr. Lee: On a point of order, I have heard some interesting things. I shall leave the personal stuff aside. Mr. Pankiw has made reference to some unanimity provision. Perhaps the clerk could take that under advisement. I am totally unfamiliar with what Mr. Pankiw is talking about. While other people comment, perhaps the clerk can figure out what Mr. Pankiw is referring to. A citation from Mr. Pankiw might help the clerk.

Mr. Pankiw: I do not have the standing orders here, but we can adjourn the committee so I can find them.

Mr. Lee: Anything would do.

Mr. Pankiw: You do not want to take my word for it?

Mr. Lee: I do not think so.

Mr. Pankiw: I am not the clerk. It is my understanding that unanimous consent would be required to reverse the decision taken in December. Can you cite the standing order that tells me that is not the case?

Mr. Lee: Just leave that with the clerk. There may be other comments around the table.

Mr. Bernier: The vote in December, Mr. Pankiw, was a vote that counsel be instructed to draft a report, period. This has been done. There is no reversing of anything.

Mr. Pankiw: Fair enough, but let us be clear. The report simply follows the instructions issued by the committee in December and contains nothing more than the correspondence about the issue that the committee has engaged in over the past five years. To vote against it now would be inconsistent with what the committee has been doing for five years. It is not a stretch; it is a fact.

Mr. Cummins: I should like to make some concluding comments. I would point out that reference was made to the November 23 letter of the minister, and that analysis has been done. It actually is contained in the disallowance document.

I would also point out that the department, in that June 2, 1997, letter that I referenced as well said that if there were an adverse ruling in Cummins v. R., that DFO would consider seeking amendments to the Pacific fishing regulations. The department has been aware of this for a long time and understands that it will probably have to change those regulations. The dilly-dallying and the delaying tactics that the department uses are, in fact, a slap in the face of the committee.

More than that, the key issue is this notion of the honour of the Crown. That is very important. Ordinary Canadians expect their government to act above reproach, and when government knowingly allows regulations that this committee has deemed to be illegal, when government knowingly allows those regulations to continue, it brings the honour of the Crown into disrepute. That is the issue here.

Fishermen have gone to jail on this principle. Fishermen who had no problems with the law prior to this have protested this issue and have ended up in jail. Scores of them are now charged and before the courts because they have been protesting these regulations. These are ordinary Canadians, not sophisticated Laval lawyers. That is the issue here. Government must be seen to be protecting the best interests of ordinary Canadians and must not be seen to be acting fast and loose with the laws and regulations.

The Joint Chairman (Senator Hervieux-Payette): I have been sitting with this committee for a number of years now, and I do respect the tradition of our Parliament. We discussed this option the last time. I do not know if Mr. Cummins would be willing to table this report. Since we have another meeting this month, in two weeks' time— are you listening, Mr. Cummins?

Mr. Cummins: Yes, I am.

The Joint Chairman (Senator Hervieux-Payette): I would suggest that maybe we could ask the minister to come. This report could be tabled, and instead of rejecting it or amending it at this point in time, we could ask the minister to appear. That is a lot of pressure. We heard earlier today about moral suasion. I think it is certainly a very efficient moral suasion on the minister to come and defend the ministry.

We still believe that we see some flaws in the regulations. However, in order to come to grips with this issue and solve it in the traditions of this Parliament, I would recommend that we go back to the consensus question and ask Mr. Cummins if he would be willing to agree to have the minister come, table the report, and we can make our decision on the report after we have heard the minister.

Mr. Cummins: As I indicated at the steering committee meeting, I was willing to discuss alternatives. No one approached me afterwards to discuss that, so I arrived here this morning without the benefit of any discussion of possible alternatives. Given that, I shall stand by the motion that I put forward. I was quite prepared to discuss alternatives after the steering committee meeting, as I indicated. However, no one saw fit to discuss it with me.


Senator Nolin: One of the arguments that convinced me last time around was the time factor. Persons are applying for licenses as we speak. I would like to know how deferring this matter for two weeks, as Madam Chair is suggesting, perhaps as a conciliatory measure, could affect the issuing of fishing licenses. Based on the information I was given last time, I understand that fishing licenses are currently been issued. Do you have any information about this? Time seems to be an important consideration. Two weeks would be sufficient, but we should not hold off too long either.


Mr. Cummins: The point is that time is of the essence. There are fishermen who have charges outstanding against them in British Columbia courts and decisions are expected. The charges relate to these regulations, and if this committee were to support the report as it stands, that could affect the outcome of those court decisions. Mr. Lee was suggesting I was creative. If he checks steering committee records, he will see that I did agree to discuss the matter with him, but no representation was made to me.

Mr. Lee: I am not going to get into a cat fight here. It was your motion, Mr. Cummins. If you want to stickhandle it, that is your job. Other people in this place are not here to help you finesse your motions. If you want to get it through the committee, please do. I am just not going to support it. The chairs have made suggestions here about deferring this for reasons that should be obvious. The issue has caught the attention of the minister and the ministry, and I think we could quickly develop a dialogue at a future meeting. I do not know whether two weeks is the right time frame. I would have thought a month or 30 days would be more suitable, given that we do not meet every week and that we have to coordinate the meetings with the Senate and the House. I would be anxious to have the minister and officials here to sort it out. We may not sort it out; we may end up in the position we are in now.

Mr. Myers: Mr.Chairman, I want a clarification on process. If we vote for Mr. Cummins' motion, I think we know what happens. If we do not, what will happen?

The Joint Chairman (Mr. Grewal): In my own opinion, there is no doubt in any member's mind here that the legality of the regulations is the issue, and everyone agrees that the regulations have been unfair and illegal. An extraordinary delay has taken place in dealing with this issue. Despite all this, the impact of the illegality in the fishing communities has been significant, and a large number of people have been affected. The court cases have created chaos in the fishing communities.

We want to resolve this issue in the best possible way. I still believe, after listening to the diverse opinions of the members, that from 1997, when we started dealing with the issue, we have tried to follow most of the steps required of the committee. The committee has done an excellent job.

There are more than 17 reasons in the sixth draft disallowance report why the regulations should have been disallowed. If we skip one point, instead of saving time and resolving the issue, a solution may not be possible. The disallowance report tabled in the house does not mean the regulations are resolved. There is a distinction between tabling the report and disallowing the regulations. If we want to accomplish that, we must deal with the issues in such a manner that a proper solution is reached.

The chairs ask, why are we skipping one step? We can go to disallowance when we have a consensus developed, and then work as a team and accomplish what we want. We are only one step below that point. If the members feel it is appropriate, we can have the minister appear before the committee in 30 days, maybe in two weeks, and resolve this issue then.

There are more issues pending that are related to the case. If we can resolve them in the next 30 days, we will be closer to finding an appropriate solution after five years of work.

Dealing with your point, rather than having a vote on the motion, we can try for a consensus. That is the tradition of how this committee has worked in the past to resolve issues like this. Let us not leave any hole unplugged in resolving this issue. If we reach that point, 30 days is not that long, compared to the five years that this committee has taken to resolve this issue.

I would urge honourable members to call the minister to appear before the committee and attempt to obtain from the minister a commitment to resolve the issue of amending the regulations. If that does not happen after that period, we will have a disallowance report and proceed with that.

Mr. White: I request a five-minute recess of this committee. There are some important discussions that may help to resolve the issue.

The Joint Chairman (Mr. Grewal): I do not mind that. If we can reach an appropriate solution for this, I am prepared to adjourn the committee for five minutes.

Senator Bryden: Some of us have other obligations. I wish to make one comment before you do adjourn. Legal or illegal, these regulations have been in place for a number of years. I understand that they not only apply just to the West Coast, but they also apply to New Brunswick, Nova Scotia, Quebec, Ontario and Manitoba. Rights, obligations and implications for ordinary Canadians operating under these regulations are in place, whether they are ordinary Aboriginal Canadians or ordinary other Canadians. Somehow we must take into account, I would think, what impact that will have if we do this.

Why do we not give the minister an opportunity to take a national view of the implications and how we could fix it in a manner that will eliminate the illegalities while doing the least amount of harm to our citizens.

Mr. Pankiw: First of all, this report will simply be tabled in Parliament. It does not mean that the regulations will be revoked. Rather, it will mean that the minister will have to respond to them. Mr. Lee said that we have the attention of the minister, so perhaps we can develop dialogue. We have been doing that for five years. The report will force the minister to respond to our report. As to Mr.Myers' question about what will happen if we vote against tabling this report in Parliament, the answer is that this committee will be considered a farce. There is no option but to pass this motion, put the report before Parliament and allow the minister to respond, which does not mean the regulations are automatically revoked. Let us take the vote.

The Joint Chairman (Senator Hervieux-Payette): Before we suspend to examine the option, my proposal is to table it here and have the minister present before the committee. My reason for saying that is that I am a senator; members will be present in the House when the minister answers and gives his reasons, and we senators will not be present to hear that because we will be in the Senate. Certainly, we can have a Committee of the Whole and ask the minister to present in the Senate. However, in the interest of time, we would not save one minute and this would only serve to politicize the whole debate rather than have the debate in the best public interest. The minister can appear before us within two weeks, which is short notice as far as I am concerned. My proposal, contrary to your proposal, is to table it before the committee.

You may deliberate now for three minutes about how you choose to proceed, but my recommendation is to have the minister appear before the committee.

The Joint Chairman (Mr. Grewal): Before we proceed, suspend the meeting for five minutes.

Mr. White: I do not need to withdraw my request for the adjournment.

The Joint Chairman (Mr. Grewal): We are back in order.

Mr. Lee: I believe it is a point of order, but I should like to move that we table the draft report and that we call the minister to appear within three weeks.

Mr. Pankiw: Point of order. There is a motion already on the floor.

The Joint Chairman (Mr. Grewal): Let Mr. Lee finish.

Mr. Lee: As I understand the point, I could simply move that the matter be tabled and we could vote on it without debate. That would end it. However, I am adding into this motion, perhaps incorrectly, an exhortation to the motion that would have us require the minister to present before the committee within three weeks to complete the dialogue. Following that, there would be reconsideration of the draft report. It is a tabling motion but it is not a tabling motion. If colleagues are prepared to consider that, then it could be put. That would bring the report back within three weeks.

The Joint Chairman (Mr. Grewal): Mr. Cummins, did you have your hand up?

Mr. Patry: He did not have his hand up.

Mr. Cummins: I did have one point.

The Joint Chairman (Mr. Grewal): Do we have a consensus to table the report for two weeks and have the minister appear before the committee in two weeks?

Mr. Pankiw: No.

Some Hon. Members: Yes.

Mr. Lee: I would ask colleagues to allow me to put the motion. I move that we defer consideration of this draft report for three weeks and that we call the minister to appear before us within three weeks.

The Joint Chairman (Senator Hervieux-Payette): We have to vote on the first motion, and then we will proceed with the second motion.

The Joint Chairman (Mr. Grewal): Mr. Cummins, would you withdraw your motion for the time being?

Mr. Pankiw: He does not have to withdraw it. Mr. Lee's motion takes precedence if it is passed. Then, if it is defeated, we proceed with Mr. Cummins' motion.

The Joint Chairman (Mr. Grewal): First, do we have consensus on tabling the report for two weeks?

Mr. Pankiw: No.

Some Hon. Members: Yes.

The Joint Chairman (Mr. Grewal): All those in favour of the motion, please say ``yea.''

Mr. Pankiw: This is a recorded vote.

Mr. Cummins: Point of order. My attention was distracted for a moment, but it is my understanding that Mr. Lee has put a tabling motion. Is that correct?

The Joint Chairman (Mr. Grewal): Yes, the report would be tabled for three weeks, and then we would have the minister appear before the committee within three weeks.

Mr. Cummins: That is the motion. Is that correct, Mr. Lee?

Mr. Lee: That is correct.

Mr. Cummins: You can do whatever you want with the minister, but your motion simply put is the only motion that would be possible for you to table.

The Joint Chairman (Mr. Grewal): Tabling the report for three weeks means deferred for three weeks. Is that what I understand? Okay.

Mr. Lee: Mr. Cummins is saying that the only motion that could take precedence to his motion is a tabling motion. I am moving a tabling motion, but I also want the minister here within three weeks. If the tabling motion passes, I suppose I could and I will. Therefore, Mr.Chairman, it is up to you to move.

The Joint Chairman (Mr. Grewal): For the sake of convenience, we will deal with two separate motions. Since it is a recorded vote, the clerk may call the vote to defer.

The Joint Chairman (Senator Hervieux-Payette): I am in favour of the motion.

Senator Bryden: Yes.

Senator Hubley: Yes.

Senator Jaffer: For the motion.

Senator Stratton: No.

Senator Moore: Yea.

Senator Nolin: No.

Mr. Cullen: Yes.

Mr. Tonks: Yes.

Mr. Keyes: Yes.

Mr. Price: Yes.

Mr. Lee: Yes.

Mr. Macklin: Yes.

Mr. Myers: Yes.

Mr. Maloney: Yes.

Mr. Cummins: No.

Mr. Vellacott: No.

Mr. White: No.

Mr. Brien: No.

Mr. Bellehumeur: No.

Mr. Pankiw: No.

Mr. Patry: Yes.

Mr. Till Heyde, Joint Clerk of the Committee: Yeas, 14. Nays, 8. Abstentions, nil.

The Joint Chairman (Mr. Grewal): The motion is adopted.

Mr. Lee: I would move that we call the Minister of Fisheries and Oceans as a witness to appear before the committee at a mutually convenient time within the next three weeks.

Mr. Pankiw: I should like to propose an amendment to that motion, to the effect that if the minister does not appear the report will automatically be deemed to have been passed and tabled in the House. He has been dodging this for five years, so who is to say he will not dodge it for the next three weeks?

The Joint Chairman (Mr. Grewal): I am not an expert on procedure, but I understand that when a motion is unconditional it is out of order. Let us proceed with the first motion. The amendment to the motion seems to be technically out of the order. All those in favour of Mr. Lee's motion, please say ``yea.''

Some Hon. Members: Yea.

The Joint Chairman (Mr. Grewal): All those opposed to Mr. Lee's motion, please say ``nay.'' The motion is adopted.

The Joint Chairman (Senator Hervieux-Payette): To ensure that we have an efficient visit from the minister, perhaps we will send a copy of the draft report to him so that he will only address it and not everything with which the department is dealing. Furthermore, we will ensure that the questions raised in the draft report are addressed, because it is very good report.

The Joint Chairman (Mr. Grewal): That is a good point.


The Joint Chairman (Mr. Grewal): Let us move on to the next item, then, which is the Railway Interswitching Regulations.

Mr. Bernier: Members have before them the December reply from the Minister of Transport to the chairmen's letter of May, 2001, regarding the Railway Interswitching Regulations. Yet, again, the minister has failed to provide a clear and unambiguous answer to the simple question put to him in the letter from the chair, which is whether the rates set out in the schedule to the Railway Interswitching Regulations are those actually charged to shippers or whether those rates are treated as maximum rates.

The committee has reached the stage at which it must consider whether to report on this matter to the Houses. Before it makes this decision, perhaps the committee may want to make another attempt at getting an answer from the minister, either in writing or through an appearance before the committee.

The Joint Chairman (Mr. Grewal): Are you recommending that we prepare a report on it, to demand an answer?

Mr. Bernier: The file has reached that stage where the committee would consider a report. At the same time, however, the committee may want to make one last attempt to get the answer it has been asking from the minister, either before considering a report or concurrently with the decision to request counsel to draft a report.

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

The Joint Chairman (Senator Hervieux-Payette): We have the option of asking the minister before we do the report, ``Can you explain why you keep going in one direction and you disagree with us,'' or preparing and studying the report. We might be able to solve it if the minister appears before us. It is up to the committee to decide which option it prefers. I want to ensure the minister is aware of all that correspondence. It is up to you to decide.

The Joint Chairman (Mr. Grewal): Any comments?


Senator Nolin: Did I understand correctly that the minister has told the committee he is considering amending the legislation?

Mr. Bernier: Indeed, plans are to amend the act so that it expressly prescribes maximum rates, rather than specific rates.

At present, the act prescribes specific rates. The Canadian Transportation Agency had promised to amend its unlawful regulations which set out maximum rates. At some point, the Minister of Transport objected to the Agency's plans to amend the act. The committee then tried to find out why the minister objected to this remedial enactment which would restore the legality of the rates. The minister's correspondence implied to the committee that the rates set out continued to be treated as maximum rates. Over time, we have been trying to get a clear response from the minister as to whether the prescribed rates are legal or not. Such a response has not been forthcoming.

The correspondence shows that the committee put a very clear question. The minister responded that he intended to amend the act. That was not the question we asked. The committee was inquiring as to the nature of the rates currently charged.


Mr. Lee: If the only thing between us and a resolution here is clarity from the minister, and if the correspondence keeps going north, south, east and west, then I can only suggest that we call the minister and let him answer it in front of us. He will not have to delegate, nor will he have to say, ``I will get back to you.'' We can have our answers right here. We have another point of business to knock off in the next three weeks, but I would suggest that, in the absence of a resolution that comes in by correspondence between now and then, we call the minister in during the next convenient meeting window and dispose of the issues in that manner.


The Joint Chairman (Senator Hervieux-Payette): Our committee is scheduled to meet next on February 21, on March 14 and on April 11. The committee would like the minister to appear by April 11 at the latest. By failing to set a time limit, we run the risk of seeing this matter drag on interminably. If we do not stipulate ``by April 11 at the latest,'' this leaves the minister free to choose either the March 14 or the April 11 meeting.


The Joint Chairman (Mr. Grewal): The next meeting?

The Joint Chairman (Senator Hervieux-Payette): No, we might have to deal with the other one at the next meeting. Let's make sure we are efficient and we deal with the other regulations as well.

Mr. Lee: I agree with the chair.

The Joint Chairman (Senator Hervieux-Payette): If the minister is giving us the answer and we are satisfied with the answer, then he does not have to appear. We will stipulate that in the letter.

The Joint Chairman (Mr. Grewal): Is there agreement that counsel prepare the report?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The committee adjourned.