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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 17 - Evidence

OTTAWA, Thursday, May 30, 2002

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:33 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): Our witnesses today are officials from the Department of Transport, Mr. Louis Ranger, Ms Guylaine Roy and Mr. Jacques Pigeon.

Before we begin, I will ask Mr. Bernier, General Counsel to the Committee, to provide us with a brief synopsis.

Mr. François-R. Bernier, General Counsel to the Committee: The questions to which the committee has been seeking answers are listed on page 2 of the April 29 letter from the chairmen of the joint committee. Under the relevant statutory authority, the Canadian Transportation Agency is required to fix the rates to be charged for interswitching of railway cars. When it examined the railway interswitching regulations in 1993, the joint committee noted that the regulations, instead of actually fixing the appropriate rates, simply prescribed maximum rates that shippers were required not to exceed. The agency was informed that its regulation did not conform to the enabling authority and eventually agreed to amend the regulations to bring them into line with the authority given by Parliament.

When the appropriate amendment was put forward by the agency, however, its submission was vetoed by the Minister of Transport. In a letter to the agency, the minister stated that a change to the long-standing practice of the agency of establishing maximum rates required further study. That statement by the minister clearly suggests that the agency continued to treat the regulations as prescribing maximum rates well after it acknowledged the illegality of the practice. This was at odds with assurances previously given, and the joint committee wanted to know how those rates are implemented in actual fact.

While the replies received from the agency on that score have indicated that the rates charged are fixed rates, this, again, is an apparent contradiction to statements of the Minister of Transport and with his action in blocking amendments to the regulations designed to clarify that the prescribed rates are fixed rates.

All of this was brought to the minister's attention in February 2000 and the minister was asked to respond. The questions are fairly simple and are listed in the Chairman's letter of April 29 to the Minister of Transport.

When the minister failed to provide the requested answers by May 9, 2002, the joint committee proceeded as it had informed the minister it would and ordered the appearance of the Deputy Minister of Transport.

I might add that the rates we are talking about are those set out in the schedule enacted by the instrument registered as SOR/97-519.

The Joint Chairman (Mr. Grewal): Thank you.

Mr. Louis Ranger, Deputy Minister, Department of Transport: I welcome the opportunity to appear before this committee to discuss the railway interswitching regulations issued by the Canadian Transportation Agency.

I wish to make a few opening comments before addressing the three questions raised by the committee.


I am here to describe the approach taken by the Minister of Transport, the Honourable David Collenette, on this matter and how this approach is being implemented by the Department.


In his letter of April 12, 1999, to the Chairman of the Canadian Transportation Agency, which was copied to the joint committee, the minister recognized that the committee had identified what it considers to be an inconsistency between the existing regulations and the statutory authority for the regulations, that is, the Canada Transportation Act. The minister noted that he was required under the Canada Transportation Act to initiate a review of the act before July 1, 2000. His letter stated: ``This appears to me to be the appropriate vehicle for considering the matter of whether the agency's authority to set interswitching rates allows it to set maximum rates rather than proceeding with an amendment to the railway interswitching regulations at this time.''


The minister was faced with two options on how to address the inconsistency between the Act and the regulations. One option was that the regulations be amended by the Agency with the approval of the Governor in Council in order to delete the phrase ``shall not exceed'' from section 8 and thereby clarify that the prescribed rates were the actual rates and not maximums. The other option was to amend the Canada Transportation Act to authorize the Agency to prescribe maximum rates.


To provide the context for the minister's approach, I should like to quote two of the key economic principles contained in section 5 of the Canada Transportation Act, which outlines the current national transportation policy.

The first is: ``Competition and market forces are, whenever possible, the prime agents in providing viable and effective transportation services.''


The second principle is that:

economic regulation of carriers and modes of transportation occurs only in respect of those services and regions where regulation is necessary to serve the transportation needs of shippers and travellers and that such regulation will not unfairly limit the ability of any carrier or mode of transportation to compete freely with any other carrier or mode of transportation.


In many areas, the Canada Transportation Act of 1996 reflected the government's goal of reducing rail regulation and placing greater reliance on market forces. This market-based philosophy is reflected in other government policy initiatives aimed at creating a commercial framework for transportation in Canada. You are all aware of the sale of Canadian National and the divestiture of airports and ports; also, we have seen major reductions in transportation subsidies.


Within this overall context, the Minister chose the policy option that was consistent with the principles of the Act and the wishes of carrier and shipper stakeholders. He decided to pursue an approach that he expected would lead to an amendment to the Act.


In June 2000, the minister appointed a panel to conduct a statutory review of the act. The minister felt the CTA review would be an appropriate forum to validate his approach that, from a policy point of view, maximum rates, not actual rates, are what are needed for interswitching. In the terms of reference, the minister specifically asked the panel to assess whether the agency should have the powers to set maximum as opposed to actual interswitching rates.


When the panel was established, the minister was fully aware of the Committee's position on this issue. Indeed, the terms of reference even noted that the matter had been raised by the committee.


In its June 2001 report, the Canada Transportation Act review panel concluded that:

Canada's rail freight transportation system works well for most users most of the time. The Panel's consultations with interested parties revealed consensus that the basic elements of a competitive and efficient rail transportation system are in place.


The panel's report noted that the legislative provision requiring the Agency to determine fixed interswitching rates is a structural flaw and recommended the Act be amended to allow the Agency to prescribe maximum rates...

... leaving it open to shippers and railways to enter into commercial arrangements for lower interswitching rates, if appropriate.


The government's response to the panel's recommendations is being incorporated in a broad initiative known as the transportation blueprint. The minister will this use this document to consult on the development of a long-term vision for transportation policy in Canada. This document will state the government's intentions on a number of transportation issues. I can safely say that the minister will propose that the document support an amendment on interswitching rates that is consistent with the panel's recommendations.


Work on the Blueprint initiative was delayed by the unfortunate events of September 11. The minister's plan is to issue the Blueprint document this fall and to table legislative amendments to the Act before the end of the calendar year, that is before Christmas.


Given the timing of the blueprint initiative and the policy decisions on interswitching rates, it would be very confusing for our stakeholders if steps were taken now to amend the agency's regulations. It would also, I respectfully submit, not be the best use of government resources, especially since a further amendment would be required to change the prescribed rates back to the maximum once the act is actually amended.


In summary, the minister recognized an inconsistency between the Act and the regulations and chose the legislative option on how to rectify the inconsistency. The minister has taken a practical approach by including this issue within the broader policy and legislative initiatives related to the CTA review and the Transportation Blueprint.


I should now like to move to the three questions the committee has posed.


The first question is:

Do the rates currently charged to shippers under the Railway Interswitching Regulations correspond exactly to the amounts fixed in the schedule to those Regulations, or are these amounts treated as representing maximum amounts that may be charged?


As a matter of clarification, interswitching rates are not charged directly to shippers. They are charged by one railway to another. That is point number one.

Point number two: The department does not monitor, per se, interswitching rates. However, as the committee raised the question, we have contacted Canadian National and Canadian Pacific, both of whom advised us that where interswitching occurs under the regulation the rates currently charged correspond to the amounts fixed in the schedule to the regulations.

You will not be surprised to hear, however, that the railways would prefer the flexibility offered under a maximum rate approach.


The second question is:

If the first of these two possibilities is a correct description of the current situation, why should the Canadian Transportation Agency not proceed with an amendment designed to remove the words ``shall not exceed'' from section 8 of the Regulations?


For policy reasons, the minister prefers to address the inconsistency by amending the act in a way consistent with its market-based philosophy. I have also commented on the confusion that will likely result if we were to pursue both the regulatory remedies and the legislative remedies at the same time, with the two actions actually going in different directions.


The third question is:

If the latter is the correct description of the current situation, the Committee wishes to receive an explanation of the legal basis upon which your department supports the continued application of illegal regulations.


We acknowledge that there is an inconsistency between the act and the regulation. We are endeavouring to rectify this inconsistency in accordance with the approach taken by the minister.

I am not a lawyer, but on the question of whether we have illegal regulations here, I much prefer the language this committee was using initially in the correspondence I have seen on this issue, and I certainly appreciate that the correspondence goes back to 1993. The initial language stated that there was an inconsistency. I am not aware that this matter has been brought before a court nor that a court in Canada has ruled on this matter and has declared that the regulation is ultra vires or that there is something illegal here.

I would respectfully submit a few basic facts. Point number one: The rates in the schedule are not set out as maximum rates. That, as you know, was corrected several years ago. Point number two: In practice, we observe that the rates prescribed are not interpreted as maximum rates. They are actually interpreted as simply the rates being charged. Looking at the correspondence you have received, the agency also confirmed that it does not monitor the rates and that the rates charged are the rates prescribed. They are not rates lower than the amount prescribed.

I realize this is not a legal argument. However, I would respectfully submit that there is inconsistency, but without a practical consequence. We have a plan. You would be right in saying that it has taken a long time to come up with that plan, but there is now a plan in place to make that happen. The first part of the plan, which was to ask an independent panel for its policy view on this matter, is behind us. We are now proceeding with the next step, which will lead us to an amendment to the legislation to remove the inconsistency.

The Joint Chairman (Mr. Grewal): Thank you, Mr. Ranger. Almost six years after this issue was brought to the committee, we have finally had some answers.

Before we go to members, I will ask general counsel to go over the perceived inconsistencies.

Mr. Bernier: In relation to the last remarks made by Mr. Ranger, I think it is useful to put on the record that in the letter of October 15, 1993, which went to the general counsel of the Canadian Transportation Agency, the third paragraph begins:

I put it to you that the making of these provisions is not authorized by section 152(4)(b) of the enabling statute.

Later in the same paragraph, it reads:

In short, the regulation-making authority conferred by section 152(4)(b) has not been exercised in a way that results in the prescription of rates called for in that section and sections 8 and 9, as well as the Schedule, appear to be ultra vires the Act.

It has been made clear from the start that the committee considered these provisions to be illegal.

The Joint Chairman (Mr. Grewal): Do you want to respond to that, Mr. Ranger?

Mr. Ranger: I assume that the general counsel will recognize that initially in the deliberations of this committee the word ``inconsistency'' was used.

Mr. Bernier: That word may well have been used. The witness has used it. It is a proper word to use. The point is that the very first communication that went to the Canadian Transportation Agency made it clear that the objection of this committee was an objection to the legality. How other people want to characterize the issue, I do not think affects that. That is what the written record shows.

The Joint Chairman (Mr. Grewal): We will go to the members and come back to the point if we need to.

Mr. Lee: Mr. Ranger, the real reason you are here with us this morning is not that we have a regulation that is ultra vires, invalid, illegal or inconsistent with the authorizing legislation; the reason you are here is that we did not have an appropriate response from your ministry.

You are here carrying the can for the recalcitrance of the ministry. We do not usually order people to come here. You are here because of a problem in communication between your ministry and Parliament. That is serious. I hope you will address it appropriately from the point of view of Parliament.

Turning to the regulation in question, you have articulated fairly well the policy context. I think counsel here has articulated the legal situation — and the correspondence reflects it clearly enough — we are dealing with. In my own personal view, you have an ultra vires regulation. Your department will change the legislation apparently, and we are delighted to hear that. If we had heard that a few years ago, this file would still be coasting in the cabinet, the way many of our files coast when the government agrees to make changes. If that kind of an undertaking here today is clear enough to my colleagues, then we have accomplished that element.

I should like you to address the first issue I raised, which is why it was necessary to go through this today. We have other business to do today. I am sure you have a cartload of business to do today. Can I ask you to address the communications problem we have had in the past?

Mr. Ranger: You have been very patient, because this has been going on since 1993. I am here on behalf of the minister. The minister had two options, and he chose the policy solution. He has instructed the department to just get on with it. Had it not been for September 11, this problem would probably be behind us as we speak. The plan was to develop this so-called blueprint document in the fall to be followed by proposed legislative amendments. We would probably have finished debating the wording of the amendment. We have had a delay; we are back on track now developing that policy document.

In the fall, we must — we have committed to every stakeholder in this country — have this blueprint document that everyone has been waiting for. We will submit that document to the standing committee in the other place, followed by proposed legislative amendments. That is the plan.

Although it may not have explicitly been said, the minister recognized from the outset that there was an inconsistency. He said: ``I will ask the CTA review to look into this matter and advise me.'' I have been deputy minister since May 13. I have reviewed the file personally and there is an inconsistency. The practical side of me says, ``Okay, what are the consequences?'' I do not see that there will be negative consequences of tolerating the situation for the next little while as we fix this problem once and for all.

Mr. Lee: Mr. Chairman, no department likes to have to admit publicly that they have an invalid regulation on the books. We have other code words that we can use, and departments use them all the time. ``Inconsistency'' is one such code word, and that is fine with us. We want to see movement; we want to see the correction. I think you have outlined a calendar of events that may be acceptable to my colleagues here. That concludes my questioning.

Mr. White: Mr. Ranger, your department is not alone in perhaps not understanding the role of this committee. While this committee may be sympathetic to some of the policy objectives that occur within departments, it is our role to check whether the regulations you operate under are actually legal. We have concluded that you have illegal regulations here.

Just to add to what Mr. Lee said, it is not good enough for departments just to ignore us and allow this to drag on and on. We have the power to disallow your regulations. If we did that, it would put you in a very difficult position.

I should like to pursue the timetable a little further because you used the word ``hope'' in your last intervention. I am rather concerned because I have been on this committee since 1993. We have had promises before about legislation coming down the track, and it never appears. I need you to convince me and perhaps other members of the committee that something will actually happen. How can you convince us that something will happen in the fall to rectify this?

Mr. Ranger: The umbrella legislation that governs everything we do is the Canada Transportation Act. We have a long-standing practice in the department to review the act every five years. There is a statutory obligation placed on the government to have a formal review. This is what we have just completed. Naturally, there are always reasons to fine- tune that legislation. That is definitely the next step.

We have already begun. Madam Roy and Mr. Pigeon are aware that we are working actively in developing amendments to the legislation to reflect the recommendations of the review.

We are behind because the department was entirely focused on the impact of September 11. We are spending time with the minister this month. In August, we will be finalizing our recommendations with the minister. We must then proceed with legislation.

The review was completed almost a year ago, in July of last year. Normally, we would already be in a legislative amendment process. We have lost some time in trying to catch up the best we can. We will not be able to make up the full time, but we definitely should be before Parliament with amendments.

I do not want to prejudge the decisions of Parliament and of committees to look into that, but I have in my written statement that it is definitely my understanding that the minister intends to bring amendments to legislation to correct this inconsistency.

Mr. White: Is there an actual written timeline somewhere? Has someone recommended a timeline for this, or are we flying by the seat of our pants?

Mr. Ranger: No. In my experience, we bring a matter before the standing committee and we set deadlines. We did that once on an urgent airline issue. Normally, we do not like to bring a matter before a standing committee and give that committee an ultimatum about responding in a certain time. We like to leave it open-ended, but we certainly will register with the standing committee that we are already behind. We would urge you to focus on the blueprint document, with a particular focus on those areas of legislation that require amendment, so that we can get on with it.

Senator Moore: To follow up on what Mr. White asked, at the bottom of page 3, Mr. Ranger, you mentioned that the minister's plan is to issue the blueprint document this fall and to table proposed legislative amendments to the act before the end of this calendar year. Is that your intended timetable?

Mr. Ranger: Absolutely.

Senator Moore: The other point I want to raise is with respect to your objection to the use of the word ``illegal.'' You seem to equate that with having to have a court ruling to make something illegal. I personally do not subscribe to that.

The regulation you are operating under is ultra vires, and we do not have to go to court to prove that. It is a bit of an extreme attitude for you to have to say that there must be a court ruling to make something illegal. We operate in this country by the rule of law. You are currently outside of the law. You may want to comment on that.

Mr. Ranger: I did indicate I was speaking beyond the text that I prepared. I did mention that I am not a lawyer. Mr. Pigeon may want to comment on this but I preferred language that was used initially — ``inconsistency'' rather than ``illegal.''

I understand why we end up with more forceful language, because progress on this file has been slow and frustrating, to say the least. I understand that we have moved to a more radical language to describe this as something illegal. I take your point, sir. I am not commenting as a lawyer. We have a gap. We will fix it, sir.


The Joint Chairman (Senator Hervieux-Payette): Congratulations, Mr. Ranger, you mentioned new legislation. Have you been with the department since 1993?

Mr. Ranger: Yes.

The Joint Chairman (Senator Hervieux-Payette): Has the Transportation Act been amended since then?

Mr. Ranger: I will have to consult with my colleagues.

Ms. Roy: The Transportation Act was in fact amended in 1996 or 1997.

The Joint Chairman (Senator Hervieux-Payette): Do you feel further amendments are warranted at this point in time?

Ms. Roy: As far as I know, this matter was brought to the minister's attention in 1999 or thereabouts. I am not certain if departmental officials involved with amending the legislation at the time were aware of the problem. It is difficult for me to speak for the people who were involved back then. To my knowledge, the minister was in touch with Ms. Robson and the correspondence in question is dated 1999.

The Joint Chairman (Senator Hervieux-Payette): Then, this means correspondence from the Committee for the Scrutiny of Regulations will be a top priority for Mr. Ranger.

I am curious about a statement you made in the last paragraph of page 4 of your presentation. You explain that inter-switching rates are not charged directly. However, I was surprised to hear you say this:

The Department does not monitor inter-switching charges.

Is someone monitoring these charges? If regulations are made, whether ultra vires or not, and then are not applied, we are entitled to wonder how many other regulations are not applied? Who is responsible for regulatory enforcement?

Mr. Ranger: The rates are published and a self-monitoring mechanism applies. If the shipper is charged more than the amount set out in the regulations, we will hear about it in short order. To my knowledge, there is no monitoring done as such. Obviously, if one party feels that his rights have been violated, we are likely to hear about it quickly.

The Joint Chairman (Senator Hervieux-Payette): You note in this paragraph that two railways are involved and that rates are charged by one railway to another. Given that rates are not charged directly to shippers, you have only two parties to monitor. It should not be too hard to find out if the parties in fact enforce the regulations. Is it fair to say that since 1993, you have not monitored the enforcement of these regulations?

Mr. Ranger: As far as I know, no systematic follow up is done. If a party feels wronged, we will hear about it. However, I do understand your point of view.

The Joint Chairman (Senator Hervieux-Payette): As a general rule, when regulations are made, it is the legislator's intention that these be applied. I am not imagining things. You indicated clearly in your presentation that the department does not monitor inter-switching charges. We have been writing to you since 1993 to let you know that your regulations are ultra vires. You can imagine that we are just a little surprised.

Mr. Ranger: These are CTA regulations. The minister is involved in the process of amending these regulations. If any kind of follow-up is warranted, I think that should be the CTA's responsibility.

Mr. Bernier: I have an answer that may reassure Mr. Ranger, who is not alone. When the matter was raised with the Canadian Transportation Agency, we received more or less the same answer, namely: ``We do not do any monitoring, even though these are our regulations.'' The CTA had to contact the companies to find out if they were complying with the regulations. Therefore, we have to wonder if these regulations are really necessary.


The Joint Chairman (Mr. Grewal): I have a brief comment and a question also. In a letter written by the minister dated June 4, 2002, on page 2, paragraph 4, it is stated that there is support from shippers and railways to continue the pricing flexibility afforded by the setting of maximum interswitching rates. As you know, this practice can benefit shippers by allowing for interswitching rates that fall well below either an actual or a maximum rate.

The committee has received contradictory and mixed responses from various sources. The Chairman of the Canadian Transportation Agency has been saying one thing and the Minister of Transport has been saying another about fixed rates versus maximum rates charged. Can you clarify that?

Mr. Ranger: By now, you know this file very well, so I will not tell stories. There is no doubt that, in most cases when a rate is set, it creates an obligation on a railway that would prefer not to have it. Most often, the rate set, even if it is called ``a maximum,'' will be the actual rate the railway will charge.

I can think of a number of circumstances where, rather than lose the traffic, for example, the railways would agree to set a lower rate to retain business. That is the name of the game in the new environment for transportation. That flexibility should be allowed and we have consulted on this twice through the CTA review panel. Now that the report is out, many shippers, coalitions and others are writing to us to comment on the recommendations to ensure that we have the message that they do want the flexibility.

In that sense, we have a double check on the position of our stakeholders and, indeed, it falls within the letter and the spirit of our policy. Our sense is this: Why not allow that flexibility if and when it is required?

The Joint Chairman (Mr. Grewal): The solution to this is to have a flexible rate. Is that correct?

Mr. Ranger: That is correct.

Mr. Bernier: I apologize, Mr. Chairman, but in his presentation Mr. Ranger stated that the rates currently charged correspond to the amounts fixed in the schedule to the regulations. Now, I am hearing that this may not actually be the case.

Mr. Ranger: I said that because it is an imposed rate that rate will be charged most of the time. However, in the future, as the situation evolves, situations may arise whereby the railways would see it to be in their best interests — to keep business for the railway — to have a lower rate, rather than allow the business to stop or to go to the trucking services, for example.

Mr. Bernier: That is reasonable. The question the committee has had for two years now about the rates charged — and you said ``most of the time'' — is whether ``all of time'' the rates charged correspond to the rates that are fixed.

Mr. Ranger: As we speak, and as we checked recently with CN and CP, all the rates charged are the rates shown in the schedule.

The Joint Chairman (Mr. Grewal): Thank you for providing the answers.





The Joint Chairman (Mr. Grewal): We will move on to the next item. As you know, all members of this committee have been working very hard on the Aboriginal Communal Fishing Licences Regulations. In the last meeting, we had consensus on various issues; accordingly, the general counsel of the joint committee has prepared the sixth report, which we will review.

I will now ask Mr. Bernier provide us with an outline, please.

Mr. Bernier: Mr. Chairman, I will not review the issues because they have been canvassed extensively, and particularly at the last meeting where the committee carefully went over each issue and decided how to deal with each one.

My comments are directly related to the draft report. In accordance with the instructions received from the committee at the May 9 meeting, the draft report proposes a disallowance of sections 4, 5, 6 and 7 of the Aboriginal Communal Fishing Licences Regulations.

At page 31 of the second draft that I circulated, the last line of the first paragraph reads ``and concluded that do not dispose of the...'' The word ``they'' should be inserted. It should read, in part: ``...that they do not dispose of the issue.''

I have two other changes I should like to put to the committee. They were suggested by a member of the committee, and I believe they do improve the report. The first would be at page 21.

Mr. Cummins: Does anyone have an updated copy? I am working from the old one.

The Joint Chairman (Senator Hervieux-Payette): I received it at about five o'clock.

The Joint Chairman (Mr. Grewal): The first report that we received along with the package is not valid because a few amendments or changes have been made. The second report was circulated yesterday. Perhaps committee members can check with their offices, where they will likely find the latest report.

Mr. Bernier: At page 21, at the eleventh line, it was suggested that the phrase ``to determine who can issue licences'' be added after the words ``the Fisheries Act.'' Hence, the whole sentence would read, as follows:

It is not the administrative power to issue licences that the Committee considers to have been unlawfully delegated but the legislative authority of the Governor in Council under section 43(f) of the Fisheries Act to determine who can issue licences.

As well, the suggestion was made to underline the words ``to issue licences'' and ``who can issue licences,'' to emphasize the distinction between the two concepts.

The second change is on page 36. In the second full paragraph, the 10th line, the words ``only conceivable'' would replace ``sole.'' Hence, the sentence would read as follows:

Indeed, the only conceivable purpose of section 7 is to open up those who contravene the terms or conditions of a licence to criminal prosecution.

The Joint Chairman (Mr. Grewal): Mr. Easter, have you comments to make?

Mr. Easter: I have one or two comments, and then I have a motion to put. At the beginning of the sixth report, the key point, ``Disallowance,'' is that sections 4, 5, 6 and 7 of the Aboriginal Community Fishing Licences Regulations, as amended, be revoked.

Mr. Chairman, the role of this committee is to ensure that the regulations are there in a clear, proper and legal way. However, we are on tenuous ground here with regard to revoking the regulations. I do not believe the committee wants to put itself in the position of making it impossible for the government to administer its policies or regulate the fishery as a result of decisions that have been imposed on it by the courts, as in the cases of Marshall and Sparrow.

I have experienced Burnt Church, and we have to look seriously at the implications of revoking the regulations. If, on the one hand, you have the courts having said the Aboriginal community can fish under Marshall and Sparrow and, on the other hand, you have no regulatory authority for the government and the Minister of Fisheries and Oceans to regulate those fisheries to ensure the protection of the fishery and to ensure there is safety on the waters and enforcement, et cetera, then we have an even greater problem than we have at the moment.

I know the committee has been waiting for some time for the Department of Fisheries and Oceans to deal with this issue, and I will admit I was not impressed by the presentation by legal counsel for the department when they were here, but I believe they now have the message, loud and clear, that this committee is willing to go as far as revoking the regulations. I would suggest, instead, that we give the department 90 days to put these regulations in a fashion that meets the proper legal authority.

I move, Mr. Chairman, seconded by Senator Bryden, that the committee request its legal counsel to take the necessary steps to convert the draft disallowance report to a regular report to Parliament, requesting a government response within 90 days, and that the report be tabled in the Senate and the House of Commons at the earliest opportunity.

The Joint Chairman (Mr. Grewal): There are other speakers who want to address this issue.

Mr. Cummins: My friend is simply wrong in most of what he said. In the first instance, if he read the committee's report, at the bottom of page 5 of the original document, it is quite clear, and it is something he should have been aware of as someone who has been involved on the Fisheries Committee for a long time, and I will quote it for his edification:

In this connection, it needs to be said that the Aboriginal Communal Fishing Licences Regulations are not exclusively concerned with aboriginal or treaty fishing rights that have been recognized by the courts.

It is important to note that. The other related issue is that those rights that have been recognized by the courts were in fact recognized, monitored and allowed by the department prior to the introduction of the Aboriginal community fishing rights.

I refer specifically to the rights granted under Sparrow. The minister has the full authority under the act to allow natives to fish for food, social and ceremonial purposes. He does not need the Aboriginal communal fishing licences to do that. There are no rights recognized by the courts that the existing Fisheries Act and regulations, exclusive of the rights recognized or granted by the Aboriginal communal fishing rights regulations — there is nothing that cannot be done. It can all be accomplished and has been accomplished by the minister prior to the introduction of these regulations.

My friend should know that, and I think most members should recognize that.

The issue here is this: Are these regulations legal? The finding has been that they are not. The department has been somewhat less than forthcoming in its presentations to this committee. The department has basically denied that the regulations are giving the bands authority that the minister does not have in an unlawful subdelegation of authority.

I want to read, if I could Mr. Chairman, from a press release of April 29, 1993. It is from the Department of Fisheries and Oceans. For further information, Françoise Ducros' name appears on the bottom. She was the Native Affairs Director at Fisheries and Oceans.

I will read the first three paragraphs of that: ``The Department of Fisheries and Oceans today made public draft regulations providing for effective management and control of Aboriginal fishing for 1993. The draft regulations are being made available for public comment prior to the enactment. They will appear May 1, 1993, in the Canada Gazette, Part 1. The regulations permit the issuance of communal licences to Aboriginal groups establishing who may be designated to fish, at what times and by what methods. They permit limits to be set on total fishing effort and provide for catch monitoring.''

Here is the key: ``The Aboriginal authorities will administer the licensing regime and work with the Department of Fisheries and Oceans to monitor and manage fishing activity.''

That is something they have denied. It says very clearly the Aboriginal authorities will administer the licensing regime.

I could go on, but it is important to recognize as well that the department has had five years to address this issue. It has failed to do so. Now, at the last minute, we have a representation from the department that somehow we delay again the business of the committee. I think it is totally inappropriate at this stage.

There was a court hearing in Nanaimo only three weeks ago, where 22 or 23 fishermen were charged. The judge and the government prosecutor decided they would withhold proceeding with the trial until this committee reached its decision on these particular regulations. Confusion and chaos will reign if the committee does not deal promptly with this matter.

Mr. Easter: I have a point of information. Mr. Cummins stated that I made a representation from the department. However, my representation is not a representation by the department, Mr. Chair, as I have no authority to do so. The secretary for Fisheries and Oceans may be able to tell us where the minister stands, and Mr. Cummins makes my point of why it is important to give a short time to ensure the regulations are put in place so we do not have more confusion and anarchy out there.

Mr. Cummins and I may differ in terms of Aboriginal fishing strategy policy; we may even agree on some of it. However, that is the policy, and we need regulations in place to ensure that policy is done in a proper fashion so we do not have confusion and trouble in the waters.

The Joint Chairman (Mr. Grewal): Thank you, Mr. Easter. As members know, a consensus was reached at the last meeting. It was very difficult to reach that consensus. I ask members to work in that spirit of cooperation so that we can accomplish something today.

Mr. Cummins: The fact is that everyone on the West Coast is aware of the position of the committee, that these regulations are illegal, invalid — call it what you will. The fact is they are simply unworkable. The knowledge is there.

People realize that the Department of Fisheries and Oceans is acting beyond its mandate when it allows fisheries under these regulations. To think that somehow people will sit back in the upcoming fishing season and allow fisheries to operate without protest — fisheries that have no legal basis — is simply dreaming in technicolor. It simply will not happen.

Furthermore, members should understand full well that the courts are no longer prepared to deal with cases involving these regulations until this issue is settled. Be assured that that there will be protests this summer unless this matter is dealt with.

Let us not forget that there will not be a vacuum when these regulations are removed. The minister has the full authority to operate the fishery. He did it before. He has the full authority to allow for any rights that have been recognized by the courts.

Furthermore, he has the full authority to continue, if he wishes, the pilot sales program. The only difference will be that those who wish to participate in that pilot sales program will have to go to DFO to be given the authority. They will not be able to go to the band councils as they now do illegally. The minister has the full ability to operate and to continue with the government policy. It is there. What will lead to a problem is continuing the charade with this illegal fishery. I can assure you that that is what will create the problem.


Mr. Farrah: Mr. Easter, I realize your committee has been working on this matter for the past five years. The minister firmly intends to review the situation at the earliest opportunity and eventually, to make some changes. He is very mindful of the prevailing situation.

We need to consider the legal aspects of this matter. You have demonstrated on numerous occasions that changes are needed, in light of the existing situation. The Joint Committee for the Scrutiny of Regulations has no desire to come up with a hasty solution that would deprive the government of the flexibility it requires and that would have even greater consequences than the actions in dispute to which Mr. Cummins was referring.

Mr. Easter's motion calling for a response within 90 days seems reasonable in that it gives the government room to maneuver and the minister an opportunity to eventually propose some changes. We could have called for a regular report within 150 days, but the situation is urgent. A shorter, more reasonable delay is warranted so that changes can be made.

A committee report should not be interpreted in such a way that the situation in the field becomes raucous. That would not be a responsible course of action. I do not think we can afford to play politics with a small c and risk an all- out conflict between non-aboriginals and aboriginals.

It is the firm intention of the Minister of Fisheries and Oceans to respond to the report and eventually, to propose a number of changes to restore some semblance of normalcy to the situation. For these reasons, I urge committee members to support Mr. Easter's motion.

Mr. Brien: I have only been a member of this committee for the past year, not for five years. We had the very same discussion in December, that is approximately six months ago. We were told to cut the department some slack. We are being asked to do the same thing here again today. We are told the department is willing to take action, but I am not impressed by what I am hearing.

We know what 90 days mean. It means we will not get a response before the fall. I think we are going to have a credibility problem if every time we are supposed to act, we back down instead.

I am mindful of the fact that the situation could possibly degenerate between aboriginals and non-aboriginals. However, the department should have thought about that long ago, particularly over the past six months when every two weeks or so, the committee pressed this point, even though it was dealing with a very heavy workload. I do not quite buy into your argument that this time, they are acting in good faith. I have no evidence that this is in fact the case.

Mr. Farrah: I understand your point of view, given the time factor. I am the parliamentary secretary and I cannot make any promises. I am linked to the minister, but I want to make it clear that I do speak for myself as well. The minister did in fact testify before the committee about one month ago and I can tell you — and you can choose to believe, or not to believe me — that judging from what I have seen during meetings that we have had, the minister is firmly committed to making the required changes so that a negotiated settlement can be reached. I cannot tell you any more than that.

The Joint Chairman (Senator Hervieux-Payette): I would simply like Mr. Brien to know that I have served on this committee for a number of years and we have skipped a stage in our work. The committee has drafted disallowance reports in the past, but there is always a preliminary stage to the process. We have never before tabled a report to both the Senate and House of Commons. Mr. Easter is proposing that we do just that and that we allow the minister 90 days to respond. We would still have the option of presenting a disallowance report.

The threat of disallowance remains, except that this way, we avoid chaos and having to deal with especially explosive conditions that might exist should we go ahead with a disallowance report without going through the usual stages. The points made are very specific and the report is well drafted. I believe the department is prepared to take action, according to what the parliamentary secretary has said. Our objective is not to create chaos, but merely to resolve this problem.

The committee follows a standard procedure when it tables a report and — you can verify this with our counsel who has worked for the committee for many years — we would not be following our usual rules of procedure if we went ahead with the disallowance report at this time.

This would be an exceptional move on the committee's part.

Ordinarily, the report would be tabled and the minister would be given time to respond and to amend the regulations in question. Failing this, we draft a disallowance report.


Mr. White: It is evident to anyone who looks at the work of this committee that we bend over backwards to be reasonable. We try to not get involved in policy discussions or the impact of removal of regulations or changes to the regulations. We are looking at the legality of them.

I am reluctant to be drawn into a debate about policy defects or effects of this disallowance. That is being introduced this morning by Mr. Easter. I do not really feel it is part of our job to be doing that. Mr. Cummins has more experience both from the legal perspective and practical experience than anyone else on this committee. Certainly, as someone from the West Coast, I am aware on the ground of what is happening there.

Since we are reluctantly drawn into the discussion of the impact of disallowance, I do not believe that many members of this committee understand the chaos that will occur if we do not continue with this disallowance. The uncertainty that will be produced will cause civil disobedience and major problems throughout the summer.

I do not believe members of this committee recognize the seriousness of this problem. If we continue with the disallowance, we produce certainty of outcome, and we can get the problem resolved. The minister will move. The government will move to fix it.

If we go for a 90-day hoist right now, it will take us into the summer break, prorogation possibly. Everyone is expecting that. Members of this committee who think that will fix the problem, to use the words of my colleague, are dreaming in technicolor.

I am disappointed to hear the motion this morning. It will not help solve the problem.

Mr. Strahl: I do not normally attend this committee; obviously, you know that. I am here today because there are probably more native fisheries in my riding than in any other riding on the West Coast. The Stol:lo Nation is affected by this, as are the sports and commercial fishery in my riding and up and down the Fraser River.

Therefore, I would like to make a few points on it. We should not put it off because the minister needs 90 days; let's not kid ourselves. This has been going on for five years. Successive ministers have known about it for years. It has been in the courts; it has been before this committee. There are no surprises here.

As has already been mentioned, this was disallowed back in December. Here we are in May. I came to the committee at that time saying that the fishery would start and that there would be chaos, urging that the matter be fixed before that happens. Here we are, put it off for another 90 days. This will go on and on.

Second, I agree with Mr. White. I hope people understand what will happen on the river this year. Last year, armed natives were patrolling the river. Sports fishermen and natives were hurling rocks at one another on the river in protests over how this was being handled. People in army fatigues with assault rifles were on the river.

We are so close to a real problem out there because nobody knows the rules. Nobody can figure out what is going on, and nobody has certainty because of this ongoing chaos. It is a real problem.

I commend all the people for keeping their heads cool in what could have been a very bad situation. There are going to be protests. We could move ahead with the disallowance if the minister used the powers that are given to him to bring in regulations to allow DFO to regulate the fisheries. He has all the power to keep things cool. There would not be a problem.

The problem will be if you allow this bogus situation to continue. It has no credibility. The commercial fishermen will protest. There will be nets in the water. There will be arrests. There will be confrontations. If you give it to DFO under the powers given to the minister, it will not be fixed but it can be handled better than how it is handled right now. There will be problems.

I mentioned last time that I was before the committee that this continued uncertainty with these regulations is frustrating to the whole sports fishing industry, which is a growing industry on both the native and non-native side. I do not know what they will do. Many of them will go out of business because a German tourist, say, cannot be given enough certainty that he can be fishing when he arrives here. Imagine a tourist spending $10,000 only to arrive here and discover that his fishing has been cancelled.

I hear that the minister is worried about litigation and that someone might sue. There are times when it is the government's job to step up and do the right thing, litigation be damned. There are times when you must do it because it is the right thing to do. An example in my riding is the disposition of the CFB Chilliwack lands. Every time a proposal comes forward on how to dispose of the land and create hundreds, if not thousands of jobs, the Stol:lo advise that if the proposal moves forward they might sue. The government then stops. Everything stops, under the threat of a lawsuit.

There are times when one must move ahead and do the right thing. If the litigation happens, it happens. Litigation is not an evil thing. It will get to the bottom of the matter if that is what it takes.

However, to not table this disallowance report and to leave it in question will result in protests in any event. You may also have litigation.

Mr. White: You might have deaths.

Mr. Strahl: You will have massive problems on the river. I urge you to move ahead with it. Let the minister grab the bull by the horns and do what he can to control it. He has the power; DFO has the power. Everyone can respect what should be the governing body that overlooks the entire fishery, which is DFO and the minister.

Instead, we are faced with a bad situation that will get worse if something is not done to control it. It will get out of hand. You have been warned repeatedly on this. One day, someone will be hurt or killed, or there will be a massive problem. Fingers will be pointed at everyone because for five years this issue has been ongoing without proper regulation.

The Joint Chairman (Mr. Grewal): Members, there was a serious discussion at the last meeting. We know this issue has been dragging on for many years. The committee has given the minister a chance to appear before the committee. As Mr. Wappel said, the committee has a strong opinion. We finally reached a consensus at the last meeting on two items, related activity and token closed time. We wanted not a disallowance report but a regular report in the House to request a comprehensive government response.

With respect to items 4, 5, 6 and 7, we agreed on disallowance the last time.

I would remind all our members that we have only 45 minutes left. Let us resolve this issue, if we can.

The next meeting of this committee was scheduled for June 13, 2002. I propose that we meet on June 6, 2002, rather than June 13, so that we can deal with the other issues as well in a timely fashion.

I still have a long list. I would urge members to be very brief. Some are probably speaking for a second time.

Mr. Lee: I do not know how much patience colleagues have for more debate. Unfortunately, I have sat on this committee for 13 years. I have listened to what Mr. Strahl has said. I will not disagree with his factual backdrop. He and some of the other members here are much closer to the fishing environment than I, given that I am from Scarborough.

The difficulties in the fishing industry as outlined by Mr. Strahl and others are difficulties that were there last year and the year before. Those difficulties may be better or worse this year. They are due to the status quo, not because we are considering disallowance but because we have a difficult situation. I am concerned about altering the status quo in a way that reduces the prospects for order. I understand the need for civil liberties and the need to sustain the commercial fishery. However, some years ago, our second disallowance was of a regulation that, I believe, was on Indian health. Those regulations, from our point of view, trespassed unduly on civil liberties in allowing officials to do certain things in respect of residences of Aboriginals when there was an outbreak of a disease.

If at the time we disallowed we had any sense that there might have been a disease scenario, incipient or out there, we would not have disallowed those regulations. We would probably have allowed them to stay in place to enable authorities to deal with the disease situation. So, we looked before we leapt. At the time, we were able to disallow, and we did that. The regulations were ultimately replaced with something else.

I just wanted to point that out. Someone told me that the salmon fishery was opening in some parts of Canada in the next few days.

Mr. Cummins: It is already open, illegally.

Mr. Lee: I am concerned about forcing a quick withdrawal of a regulation right at the time when an apparently difficult fishery scenario is opening up in various areas. I have spent a great deal of extra-curricular time on this file, as has Mr. Cummins, as well, with a view to bringing it to a conclusion. It has meant working behind the scenes with lawyers for the government and with lawyers elsewhere. I can say that, while I am firm in support of the view of the committee on the legality or illegality of these regulations, I have run it up the flag pole at least six times in an effort to draw a conclusion.

Our counsel has drawn the line in the sand precisely where this committee has drawn the line for years on each of the three issues before us today. The line has been drawn exactly where it was drawn before. If there is to be a change in law, it will only be because Parliament changes it or because the courts will influence a change.

Right now, we are on good legal ground. On the practical side, I have reasonable grounds to believe that the department is prepared to act quickly on this, and we have never given them a chance to act quickly. I am not even sure we have convinced them, 10 out of 10, on the legality issue. A report in the House that is well written and articulated will allow everyone to see the committee's view, however technical they may consider it. I think a 90-day turnaround will get us through the summer, although the salmon fishery will be over for the season. The minister is still free to enact regulations whenever he wishes, or the Governor in Council is, to deal with the fishery. However, I am almost certain that the message has been delivered. I say that for all the reasons I have just outlined. I am keen to close the file as soon as possible. I am not too sure how I will vote on this motion, but I thank you for the time to comment.

The Joint Chairman (Mr. Grewal): Thank you for giving us the benefit of your 13 years on the committee.

Senator Bryden: I will be brief, Mr. Chairman. I want to follow up on some of Mr. Lee's comments.

There was a reference made to the continuation of this illegal fishery. It is quite legal for Aboriginals to fish — it is guaranteed in our Constitution and it is also guaranteed by the courts in decisions such as Sparrow and Marshall. The right of Aboriginals to fish for food, social and ceremonial purposes. I just want to ensure that we understand that.

I am following up on Mr. Lee's comment to indicate that, disallowance, in my opinion, would create a state of limbo at this stage, where neither the department nor those affected by the regulations or its disallowance would know where they stand. The proposal in the motion is that the report goes to Parliament in the normal fashion to give the department and Parliament the opportunity to deal with it.

If we simply disallow, the reasons that will go before Parliament would not become part of the ongoing situation in respect of judicial cases that may be proceeding or actions that are being taken. We do not become precedent-setting or directive in any way to the court.

There has been the suggestion that there will be all kinds of chaos if action is taken or not taken. I am from New Brunswick, and I have participated and am well aware of what occurs in unstructured situations. We can all tell a horror story about the shotguns and boats running over people. We have a fishery that exists now and has for a long time.

My feeling has always been, and continues to be, that if we can get the matter clearly before the minister and before Parliament we will give them an opportunity to consider the matter and to act and to make their arguments in response to the position that we are putting. By saying that we will cut if off, we are inflicting a very serious, almost capital action on the structure. I do not think we are at a stage where we should be doing that; we cannot do that. I know someone over there talked about not caring, really, what the policy is or what the implications are. Our decision is whether this is legal or not legal.

We do not live in a bubble; hence, we cannot act with concern only for the legality of the issue. I do not want to account for dealing only with the legal matters if the implications are serious, and they could be. Let us take a little bit of time and allow Parliament the opportunity to act in the normal fashion.

Mr. Easter: There is no question that the Aboriginal fishing issue is a contentious one and has created a great deal of protest on the water. If someone is leaving the impression in any community that, just because we drop these regulations or revoke them, that contention will disappear, those people are dreaming in technicolor. I heard what Mr. Cummins said, but do you really believe that by revoking these regulations it will lessen the chance of protest? I think it will increase the chance of protest by either side.

If the regulations are revoked, there is an increased risk of trouble on the waters. There is no question about it; I agree with Mr. Cummins and others on this point.

There has been stonewalling by the department. Keep in mind that we have a new minister who has not been in the job for very long. I believe that he is committed to the issues. He appeared before the committee. In fact, I think he is the only minister to appear before the committee on this issue, is he not? He appeared before the committee and he watched how his own legal counsel operated. I do not believe he was impressed with that legal counsel. I certainly was not impressed.

We have been given some assurances by the parliamentary secretary that this will be fixed in a proper fashion, and if the minister can fix it in less than 90 days, I think he will do so. All I am saying is, yes, the minister has a lot of power under the Fisheries Act. He should exercise that power and change these regulations to accommodate the policies that are in place so that they are done in a legal fashion. If he does it that way soon, then we stand less risk of having contention in the water. There will still be protest because this is bigger than just this regulatory issue. It is a problem we must address in other forums, not this one.

Mr. Cummins: The issue you must understand is that things are out of control now. It is not that they will be out of control; they are out of control now.

In the last 10 years, since these regulations have been put in place, the fishery has been in a state of chaos, to the point where, in 1999, for the first time in over 100 years of commercial fishing activity on the Fraser River, there was no commercial fishery. There were no fish because there had been no enforcement or monitoring, largely as the result of ineffective legislation.

In 2000, there were only three days of commercial fishing, and last year, again, there was no commercial fishing, none, on the Fraser River, the second time in history.

When you drive down a public road and observe an illegal native fishery and are confronted by natives dressed in camouflage gear whose faces are covered with masks and who have big knives in shoulder holsters on a public road, and the RCMP cannot do anything, you know you have chaos. That has happened to me. It is not fun; it is bloody frightening.

We are not talking about Yugoslavia. I am talking about British Columbia. Things are out of control now. The status quo was referred to. The status quo is no more. The court in Nanaimo put off the 22 charges it has until this committee acts.

We all agree, and I am sure there is no dissension on the other side, that the regulations as they stand are illegal. Do we not all agree on that, Mr. Lee? Is that not correct?

We all agree that the regulations are illegal. There will be protests this summer. There is not a court in this land that will convict someone for protesting illegal regulations. Whether you move with the disallowance or not, that will be the defence and that will be the finding of the court. It will be open season on protest. I guarantee it. It will happen.

You will not be able to take the boat because no court will allow government to seize vessels when the government itself is acting illegally. You have to understand that.

Senator Bryden made some well-motivated comments. I want to respond, senator, because I must correct a misconception here.

The first point is that the minister has the authority without these regulations to allow for a fishery under every court-recognized Aboriginal right that there is. The right under Sparrow, there is not a problem. The minister has the authority to allow fishing for food, social and ceremonial purposes without these regulations. He did it before these regulations were put in place; he can do it after.

The minister also has the authority to allow for those separate native commercial fisheries, which are allowed under the AFS, if he so chooses, but he cannot do it under these regulations. The issue here is who is in control. For the last 10 years, the department has abdicated its responsibility to manage the fishery, for all Canadians. When stocks decline like they have, there is a serious problem.

That, ladies and gentlemen, is the issue here. I am adamant that we proceed because I do not want to protest again. I have done it, and I have been in jail over this issue. I do not want to do that again. Believe me, I do not. However, if you do not move on this today, you are forcing me into the position that if I do not, my friends will, and we do not want to do that.

What we are saying is this: Tell the minister he has a responsibility to manage that fishery. He has all the tools he needs to fulfil his responsibility. Do it legally. Protect the fish and their stocks. Allow the native people to fish as the courts have found they have the right to do in certain circumstances, and let us regain control of that fishery before it is too late.

That, my friends, is the issue here today.


Senator Lapointe: Have aboriginals been promised that the situation would be settled or resolved within 90 days? I am merely thinking about the repercussions. I think this could help to allay people's concerns. Speaking from personal experience, I know aboriginals are very patient people by nature. However, if certain promises have been made to them and these are not kept, there could be some fallout. Can anyone answer my question?

Mr. Farrah: I cannot tell you whether or not a specific promise or commitment was made in years past. We could look into that for you.

Senator Lapointe: If empty promises have been made to aboriginals, the 90-day deadline will not mean a great deal to them. However, if this is in fact the first time that they are being told the minister will come to a decision in 90 days' time, that might ease tensions somewhat over the summer.

Mr. Farrah: You are talking about credibility and good faith.

Senator Lapointe: That is the point I was trying to make.

The Joint Chairman (Senator Hervieux-Payette): As a general rule, the committee and the minister are on good terms. As for the nature of the relationship between the minister and aboriginals, we do not have any kind of letter or document on file to indicate that the minister has made any kind of commitment or undertaking whatsoever to aboriginals where this issue is concerned. We have nothing in the way of any documentation since we first began examining these regulations.

Senator Lapointe: Following this morning's vote, will the minister be taking any steps to inform Aboriginals of the situation?

The Joint Chairman (Senator Hervieux-Payette): In accordance with Mr. Easter's motion, the minister would have 90 days to respond to the comprehensive report calling for changes. If, after 90 days, no action is taken to amend the regulations, the committee can then take the extreme step of disallowing the regulations. We have received assurances that the minister is prepared to amend the regulations within a reasonable time frame. The normal response time is 150 days. We are giving him 90 days.

However, never before has such a detailed report been tabled to both chambers, specifically requesting amendments to the regulations and stating the reasons for the requested changes. This is a first. In the past we have requested amendments either in writing or verbally, but this time, the committee went a step further and drafted a report.


The Joint Chairman (Mr. Grewal): In the last meeting, members directed our general counsel to prepare the sixth report. I commend general counsel for doing an excellent job. I have gone through this report. It is a well-prepared document.

When we directed general counsel, we asked him to prepare an ordinary report, if I may say, to be tabled in both Houses asking the government's comprehensive response on related activity. We also directed the general counsel to prepare a disallowance report for the committee to approve or disapprove on items 4, 5, 6 and 7. We now have a motion before us to go back from this report to an ordinary report again.

I have to deal with the motion as the chair. This motion moved by Mr. Easter, seconded by Senator Bryden, was that the committee request its legal counsel to take the necessary steps to convert the draft disallowance report to a regular report to Parliament requesting a government response in 90 days and that the report be tabled in the Senate and the House of Commons at the earliest opportunity.

Just for clarification, Standing Order 109 says that 150 days are to be provided, but the motion says 90 days, which is okay with the counsel.

Do you want to say something, counsel?

Mr. Bernier: Just one comment, Mr. Chairman, in relation to the last portion of Mr. Easter's motion. I want to be clear that I understand the motion.

We would bring back a regular report at the next meeting of the committee, correct, for approval by members?

The Joint Chairman (Mr. Grewal): If the motion passes.

Mr. Bernier: Yes, if the motion passes. Is this meant to be standing authority to make changes?

Mr. Easter: I think the report, Mr. Chair, is a good report. It outlines the seriousness of the issue as the committee sees it. I have no problem with the drafting people, with the approval of the Chair, making changes to make this basically a regular report, giving it 90 days. If the report states the same as this report, with the exception of the disallowance, it does not need to come back to committee. It could be done more quickly that way.

Mr. Bernier: I do not have a problem with that, either. However, the committee may want to hear from the clerk in terms of procedure. Is that an acceptable way if the committee decides to proceed that way?

Mr. Roy: Members are master of the committee. Normally, it is much better if the committee at least sees the report; however, if you wish to proceed otherwise, it is fine.

The Joint Chairman (Senator Hervieux-Payette): It is the same report.

The Joint Chairman (Mr. Grewal): In my opinion, the committee must see the report. It is customary that the members of the committee see the report before it is tabled in the House, for safety and compliance with the rules and regulations.

Mr. Easter: I trust the chair, but fine.

The Joint Chairman (Senator Hervieux-Payette): I must say I would feel responsible with the co-chair. In fact, it is just a covering document that will change. This covering document is a standard document, so I would not hesitate to not have the report return if the committee allows us.

Mr. Bernier: Could we say subject to the approval of the joint chairmen of the committee?

Mr. Easter: If we need a motion to that effect, I would move that. I hope that we are clear on the understanding. Under the rules, the ministry has 150 days in which to respond. I understand that. We are asking for 90 days. In my view, if there is not an answer in 90 days that changes these regulations in the proper fashion, the committee moves immediately to go to this report here, which is revoke. We are not fooling around.

Mr. Cummins: Mr. Chairman, you should note that this is not the first disallowance report. It is the second one. We have been this route before. The committee voted down the previous report for the exact same reason that the member is giving now. We must give the government time.

We have now the second report, and this member is doing the same thing again. The reputation of this committee stands on this issue. The committee has found for five years that these regulations are beyond the law. Everyone in the bloody country knows the feeling of committee on this. Everyone affected by these laws and regulations knows the feeling of the committee on this.

If the committee does not do its job this morning, it will bring itself into disrepute. There is no question about that, none.

Mr. Easter: We just had the minister before the committee. This minister is showing a willingness to deal with the issue. Let us give him the time to deal with it in a comprehensive fashion.

Mr. Cummins: A week ago when I talked about it, there was no will.

The Joint Chairman (Mr. Grewal): I know there is disappointment because in my opinion, my personal opinion, not as chair of the committee, I intended to move forward, not backward. We already had decided at one time, but since there is a motion, we must decide the motion. I will ask the clerk to take the vote.

Has the motion been amended?

Mr. Easter: Yes, it is amended.

The Joint Chairman (Mr. Grewal): The motion states that the committee requests its legal counsel to take the necessary steps to convert the draft disallowance report to a regular report to Parliament requesting a government response within 90 days and that the report be tabled in the Senate and the House of Commons at the earliest opportunity and that the joint chairs be authorized to finalize the text and table the report in both the Houses.

That is the motion. I will ask the clerk to take the vote.

Mr. Till Heyde, Joint Clerk of the Committee: The Honourable Senator Hervieux-Payette.

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

The Joint Clerk (Mr. Heyde): The Honourable Senator John Bryden.

Senator Bryden: Agreed.

The Joint Clerk (Mr. Heyde): The Honourable Senator Mobina Jaffer.

Senator Jaffer: Agreed.

The Joint Clerk (Mr. Heyde): The Honourable Senator Jean Lapointe.

Senator Lapointe: Agreed.

The Joint Clerk (Mr. Heyde): The Honourable Senator Wilfred Moore.

Senator Moore: Agreed.

Mr. Jean-Michel Roy, Joint Clerk of the Committee: Mr. Farrah.

Mr. Farrah: Agreed.

The Joint Clerk (Mr. Roy): Mr Cuzner.

Mr. Cuzner: Agreed.

The Joint Clerk (Mr. Roy): Mr. Lee.

Mr. Lee: No.

The Joint Clerk (Mr. Roy): Mr. Macklin.

Mr. Macklin: Agreed.

The Joint Clerk (Mr. Roy): Mr. Maloney.

Mr. Maloney: Yes.

The Joint Clerk (Mr. Roy): Mr. Easter.

Mr. Easter: Yes.

The Joint Clerk (Mr. Roy): Mr. Grewal.

The Joint Chairman (Mr. Grewal): No.

The Joint Clerk (Mr. Roy): Mr. Cummins.

Mr. Cummins: No.

The Joint Clerk (Mr. Roy): Mr. Strahl.

Mr. Strahl: No.

The Joint Clerk (Mr. Roy): Mr. White.

Mr. White: No.

The Joint Clerk (Mr. Roy): Mr. Brien.

Mr. Brien: No.

The Joint Clerk (Mr. Heyde): There are 10 yeas, 6 nays, and no abstentions.

The Joint Chairman (Mr. Grewal): This motion passes and the report will be tabled. The clerk will be preparing the regular report rather than the disallowance report on these issues.

We have two more items. Senator, do you wish to take over?



Mr. Bernier: Members have received a copy of the text of the presentation made by the joint chairmen to the Standing Senate Committee on Legal and Constitutional Affairs in conjunction with that committee's study of Bill S- 41.


At some point, Madam Chairman, it would be appropriate for this committee to pursue the question of whether the bill constitutes a proper response to the committee's third report.

While the government had apparently presented some amendments to the bill to the Senate committee yesterday, none of these meets the objections stated by the joint chairmen in their presentation to that committee.


The Joint Chairman (Senator Hervieux-Payette): Have they agreed to our changes?

Mr. Bernier: No. One amendment has been made, but this does not show up in the amendments tabled by the government.


The cochair and I have appeared before the Standing Senate Committee on Legal and Constitutional Affairs to speak about the translation to French of regulations passed before 1969 in order to make them valid and legal. As the government, with the Senate bill, is solving half of the problem, we made a proposal to solve the other half. They said they did not know where they were but that they could translate them all, so we suggested that they pass a clause giving them one year to translate the ones they find, and the other ones will just disappear. Why should we leave in the closet some regulations that nobody can find? Who can apply them if they cannot find them?

I must say that legal counsel has done extensive research and has proposed a clause that was well received. The co- chair and myself were very happy to answer the questions, and also happy for half of the solution, but we would have wished the solution would be complete and deal with all pieces of regulation.

Senator Moore: Senator Bryden and I sit in that committee. We met yesterday and four amendments were brought before us. I thought they had covered the suggestion you put forward. We are going to clause-by-clause this morning when we meet again. I thought we had dealt with it and that the amendments encompassed your suggestion.

Counsel, did you see the amendments that the department brought in?

Mr. Bernier: Yes, sir. Unless some other copy is available, what I saw did not include the specific suggested amendments put forward by the joint chairs. There were indeed four of them.

Senator Moore: We will follow it up this morning.

The Joint Chairman (Senator Hervieux-Payette): I was under the impression that almost every member sitting on that committee was in agreement with our drafted proposal from legal counsel. I thought it would do a nice, clean job and remove all the uncertainties, allowing the department to do its job over 12 months. If they want two years, we would not have challenged that amount of time. It was just a matter of putting in a timeline for the translation, rather than it dragging on forever.


Senator Lapointe: Did they say why they rejected the proposed changes?

The Joint Chairman (Senator Hervieux-Payette): Mr. Moore and Mr. Bryden seemed to agree with our suggestions. Mr. Moore was under the impression that they had been taken into account. We will clear this matter up and give them leave to do their work.



Mr. Peter Bernhardt, Counsel to the Committee: The third report was a follow-up to the committee's report number 61. In that earlier report, the committee dealt with provisions in the Royal Canadian Mounted Police Regulations, 1988, that imposed limits on political activities that could be engaged in by members of the RCMP. The committee concluded that these provisions were inconsistent with the Canadian Charter of Rights and Freedoms. The committee's concerns were eventually dealt with by amendments to the regulations made by SOR/2000-251.

While the third report was used to indicate the committee's appreciation that the regulations had been amended so as to conform to the Charter, that report also reiterated the committee's view that amendments to the regulations should only be an interim step and that any significant limits on individual rights and freedoms should be established directly by an act of Parliament.

It was again recommended, therefore, that the limits of permissible political participation by members of the RCMP should be dealt with in the Royal Canadian Mounted Police Act itself.

The committee observed that the Solicitor General had indicated a willingness to take this view under advisement, but recommended that the government confirm its acceptance of the principles set out in the third report and that the government inform Parliament as to the time frame for the introduction of amendments.

A comprehensive government response to the report was requested, and that response was tabled on March 22. The response notes that there is now agreement that the present regulations conform to the Charter and advises that the government is satisfied that the act and regulations as they currently exist are satisfactory and acceptable and that no amendments to the act are necessary at this time. The committee is pleased that the regulations conform to the Charter and has requested that those provisions be transferred to the statute. The government has replied that it does not see that as being necessary.

I suppose we have little choice at this point but to agree to disagree.

The Joint Chairman (Mr. Grewal): I am disappointed with the response from the Solicitor General, particularly the last sentence of the last paragraph on the first page: ``As such, there is no need at this time to amend the RCMP Act for this purpose.'' My understanding was that when we tried to resolve this issue outside the committee, and I appreciate the efforts by members of this committee to do that, the government agreed that they will look into it and that the rights and liberties of the members on the RCMP will be respected.

We now hear that the government feels there is no need to amend the RCMP Act. Where do we stand? What action we will take? This committee has invested much time on this issue, and I feel we are back to square one.

Mr. Bernhardt: In a sense, we are not really back to square one. What the committee did secure was amendments to the regulations. The committee has concluded that it is satisfied that this brings the regulations into conformity with the Charter. What the government then agreed to do was consider the committee's assertion that ultimately these provisions should be transferred into the act. The government now advises that it has undertaken that consideration and has concluded that the status quo is fine, given that everyone agrees the regulations are Charter compliant.

Where does that leave the committee? The committee has twice put its position on the record before Parliament in two separate reports. It has secured amendments to the regulations. At this point, I am not sure there is much by way of options to go any further than that.


The Joint Chairman (Senator Hervieux-Payette): I think that goes beyond the scope of our mandate. All we can do is take note of the fact that the government has not taken any action on the legislative front, but at least it has made a number of regulatory changes, in keeping with this committee's mandate.



Mr. Bernhardt: The principal issue here is whether the Governor in Council has authority to amend a representation order made under the Electoral Boundaries Readjustment Act. In a January 2001 letter, counsel set out in detail the reasons for concluding that, in fact, there was no such authority.

When this was last before the committee, members were of the view that the reply from the government house leader did not address the objections made. The reasons for the committee's view are set out at length in the joint chairmen's letter of December 14, 2001. A copy of this letter was also sent to the Chief Electoral Officer.

In reply, we have Mr. Kingsley's letter of May 1. He advises the committee that upon further analysis the better view would indeed appear to be that advanced by the joint committee. The Chief Electoral Officer also indicates that he will, in future, be guided by this view.

I will quote from Mr. Kingsley's reply: ``Such a broad authority to reconsider electoral boundaries is not the intent of the Electoral Boundaries Readjustment Act...''

More recently, members were just given a letter from the government house leader; it was received just this week. Mr. Goodale does not seem as certain as Mr. Kingsley that the committee is correct, although he does indicate that he has asked his officials to propose options for addressing the issue. Perhaps the joint chairmen could simply write to the government house leader, referring him to the Chief Electoral Officer's letter, and indicate that as far as the committee is concerned Mr. Kingsley's letter fully disposes of the matter.

The Joint Chairman (Mr. Grewal): Madam Co-chair, I should like to commend the Chief Electoral Officer for his candid response. Mr. Kingsley has given us a clear view of his situation. In my opinion, we should write to the new house leader and include a quote from Kingsley, if the counsel recommends that approach.


(For text of documents, see Appendix p. 17A:1 )

Mr. Bernier: This relates to the need to validate certain proclamations that purported to suspend the application of certain words in section 77 of the Indian Act.

The minister agrees there is such a need. Officials are looking into the possibility of validating the proclamations through the Miscellaneous Statute Law Amendment Program. The minister 's letter, of course, also deals with the Indian Estates Regulations, but this particular file is not on the agenda today. In respect of the section 77 proclamations, I would suggest that the chairmen write to the minister, perhaps in September, to ascertain what progress has been made.


Mr. Bernier: In this case, members have the note before them and have read it, I am sure. I would simply suggest that the chairmen write to the minister responsible to ask him to explain to his officials that when commitments are given to the committee by the appointed Designated Instruments Officer, DIO, for a department, the committee expects those commitments will be respected by the department and by the minister. The committee simply cannot function efficiently if any new DIO feels free to renege on undertakings given by his or her predecessor. Amendments to these regulations were promised to the committee and they should be made. I would suggest that you write to the minister.

The Joint Chairman (Mr. Grewal): Madam Co-chair, sometimes we do not hear from the various departments in the due course of time. I was surprised to read that the correspondence disappeared and that it was difficult to relocate the correspondence from this committee to the department. I was a little disappointed by that.

The Joint Chairman (Senator Hervieux-Payette): We probably have a better follow-up system.


(For text of documents, see Appendix p. 17B:1)


The Joint Chairman (Senator Hervieux-Payette): The next item on the agenda has no number. Is that correct?


Mr. Bernhardt: You are quite correct, there is no number. Since 1994, the fees for national parks and national historic sites have been fixed not by regulation but on an administrative basis. These fees are now called the Parks Canada Master List of Fees.

However, pursuant to the Department of Canadian Heritage Act originally and now the Parks Canada Agency Act, these fees stand referred to the joint committee as if they were regulations. That is why we are seized of these fees.

The committee has taken the view elsewhere that the lawfulness of fixing these fees, in this particular case other than by regulation, is questionable. That is being pursued in connection with another file. The committee has before it this morning issues that arise from the fees as fixed in the master list.

In 1998, counsel wrote to request a copy of all original documents by which the minister had fixed these fees, to enable the committee to carry out its mandate. In reply, we were referred to the master list published in Part 1 of the Canada Gazette. It was then pointed out to the department that publication in the Canada Gazette constitutes notice that fees had been fixed but that there must be some prior original instrument that actually fixed the fees. That is what we were looking for.

There seems to be some difficulty in grasping the point. There was further correspondence, and that culminated in a letter to the Minister of Canadian Heritage of September 10, 2001, asking that she ask her officials to provide this material without further delay. The result was the department's letter of November 16 last and the accompanying documentation, which is fairly voluminous. It is summarized in the covering notes beginning at the bottom of the second page.

Suffice it to say that the documentation that the committee has been furnished with deals with only a fraction of the fees that have been fixed. It could best be described as a hodgepodge of sometimes unclear and undated documents. We even have a sworn affidavit from the CEO of Parks Canada that indicates certain check marks and handwritten notes in the margins of one document represent the minister's approval or withholding of approval.

In the end, the request for the copies of the original documents, which was first made in December 1998, is still largely unanswered. In fact, I might hazard the opinion that the documentation we have received raises more questions than it answers.

It seems likely that the problem is that neither the agency nor the department can comply with the request. They have imposed the fees in a haphazard manner, in some cases on the basis of a check mark that may or may not have been put in the margin of some memorandum by a minister. In many cases, there is apparently no paper trail at all to indicate how, by whom or when the fee was actually fixed. In short, the impression is one of pretty much utter chaos.


The Joint Chairman (Senator Hervieux-Payette): For members who are not up on this file, the main question here is whether regulations are needed to allow for the setting, administratively speaking, of the schedules of fees charged to all parks and all establishments under the control of the department in question.

Is this process covered by regulations? Legally, must it be subject to regulations? Does the department have the authority to establish a fee schedule in the absence of regulatory authority?

In short, it is not up to us to verify all of these fees and I have no intention of doing that. It is important to know if regulations are required to authorize the department to charge these fees. Are regulations required, yes or no?


Mr. Bernhardt: There are provisions in the Parks Canada Agency Act that provide for the fixing of fees on this basis. The problem the committee has with it, in this instance, is that there are also provisions in the National Parks Act that have led the committee to conclude that fees under national parks need to be fixed by regulation — certain fees relating to the use of the parks — and that they cannot be done through the administrative power conferred in the other statutes. That is one problem, and the committee has pursued that in connection with another file.

On a parallel track, we have tried to look at the fees that they have been fixing because once they fix those under the Parks Canada Agency Act the act says they come to this committee just as if they were regulations. That has opened up a separate inquiry, which has raised issues, aside from whether they can fix the fees this way in the first place, on just how they have gone about fixing those fees.

There seems to be pretty much a complete lack of any system or documentation.


The Joint Chairman (Senator Hervieux-Payette): Since there seems to be some confusion as far as the legislation is concerned, do we continue trying to get the department to understand how these fees should be administered?


Mr. Bernhardt: We should give, I suppose, the agency and the department some credit. They have clearly recognized a problem in their procedure, and they have told us that they are putting a new procedure in place, which is basically following the path you would take if you were making the regulation. The forms they are proposing to use internally look like the same sort of thing you do for regulation. If that is adopted in the future, that is fine.

The problem is the fees in place now. There is considerable uncertainty as to whether that has been properly done.

One partial solution might be to suggest to the agency to simply use their new procedure to redo the entire list of fees, to give themselves a fresh start. At least they would know what they have as of this point in time.

They might also wish to simplify things by remaking that list every year rather than adding or changing fees. If they reissued it every year, you would never have to go back behind the current year to find your documentation.

Those are two suggestions the committee could make to the minister to at least clean up this side of the problem.


The Joint Chairman (Senator Hervieux-Payette): A copy should be sent to the Agency as well. Perhaps the Agency and the department should agree on which approach to take. After all, the Agency will have responsibility for drawing up and administering the fees.


Is there agreement that we send a letter to the minister, with a copy to the head of the agency, so that they can correct the matter? What we are proposing is good governance.



(For text of documents, see Appendix p. 17C:1)


The Joint Chairman (Senator Hervieux-Payette): We now come to a subject that everyone is eager to talk about, namely fishing. We seem to be experts on the subject of fishing this morning.


Mr. Bernier: Madam Chair, two letters detailing some 59 objections or problems with these regulations were sent to the Canadian Food Inspection Agency in December 2000. In a letter dated March 7, 2002, the agency dealt with 14 of the more minor points and indicated that they would continue their review of the remaining comments and provide updates of their progress as they became available.

I would suggest that this is not an acceptable answer. The agency has now had the joint committee's comments under consideration for nearly a year and a half. I suggest that the chairmen write the minister responsible requesting him to instruct agency staff to provide a full and reasoned reply without further delay on all outstanding points.

The Joint Chairman (Senator Hervieux-Payette): Is everyone in agreement?

The Joint Chairman (Mr. Grewal): Does the committee agree with the 14 objections to which the agency responded already?

Mr. Bernier: The 14 to which the agency responded are really matters of drafting, so they are of little consequence. There is a series of objections to the legality of provisions. For those, we have only been told that at some point in the future we may get a reply.

The Joint Chairman (Senator Hervieux-Payette): Maybe you should indicate to the minister that we want him to deal with the Aboriginal communal fishing licences regulations first and then this one.

The Joint Chairman (Mr. Grewal): Could we have asked this question of the minister when he was here?


We have a new minister on the job and we should give him time to review the matter and to provide us with an answer.


Mr. Bernier: As my colleague has pointed out, this is a Department of Agriculture matter because it involves the Canadian Food Inspection Agency.


(For text of documents, see Appendix p. 17D:1)

Mr. Bernhardt: Madam Chair, the committee has been promised amendments in connection with the matters raised in points 1, 2, 5, 6 and 7 of the correspondence. I had suggested that the explanations received in connection with the other two points, that is, points 3 and 4, are satisfactory. Therefore, at this time it would be simply a matter of seeking a progress report on the promised amendments.



Mr. Bernier: In this instance, the note draws the committee's attention to the fact that legislative amendments made in 1988 resolved some of the problems identified by the committee. Upon reviewing another file, the realization dawned that this fact had not been formally brought to the committee's attention.


(For text of documents, see Appendix p. 17E:1)

The Joint Chairman (Senator Hervieux-Payette): Does the same apply in the case of SOR/81-613?

Mr. Bernier: Yes.

The Joint Chairman (Senator Hervieux-Payette): I see. We have now run through our agenda.

Mr. Bernier: I know Mr. Lee is always interested in knowing how many items were presented without comment. The number of such items currently stands at 32.

The Joint Chairman (Senator Hervieux-Payette): The next meeting is slated for June 6. Do you wish to discuss the budget at this time?

The Joint Clerk (Mr. Till Heyde): That is the budget for the conference in Toronto.


The Joint Chairman (Mr. Grewal): I will make two quick points. I attended before the House of Commons Liaison Committee, which has approved only $7,000 for our committee until September. After September, we will get the rest of the money from our budget.

Second, we have an application for budget authorization for the committee to travel to Toronto for the ``Red Tape to Smart Tape Conference.'' The budget involves about $16,000 for the House, $6,900 for the Senate and $23,300 for professional and other services and for transport and communications. The conference is taking place September 25- 27, 2002.

We will see how many members would like to go. However, I should point out that members who wish to attend the conference would be required to use their travel points. The committee will be responsible for registration fees, hotel accommodation and transportation, but travelling from Ottawa to Toronto will be on travel points.

May I have a motion for this budget, please?

Senator Moore: I so move.

The Joint Chairman (Mr. Grewal): All those in favour?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Carried.

The committee will meet next on June 6, 2002. Members will receive a notice of that meeting.

The committee adjourned.

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