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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 3 - Evidence

OTTAWA, Thursday, April 5, 2001

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. to consider statutory instruments.

Senator Céline Hervieux-Payette and Mr. Jim Pankiw (Joint Chairmen) presiding.


The Joint Chairman (Senator Hervieux-Payette): You have the agenda, which calls for consideration of statutory instruments and of the committee's travel budget. Since I have another meeting scheduled for 9:15 a.m., Mr. Pankiw will preside over the latter part of the meeting. If there are no objections, around 9 a.m., we will discuss the travel budget and the possibility of sending a delegation to Australia.

We will begin with our regular work, namely the review of statutory instruments, beginning with the first regulations on our agenda.



Mr. François-R. Bernier, General Counsel to the Committee: The members have before them the government's response to committee report No. 66. In that report, the committee stated its view that the Fisheries Act does not authorize the government to provide for the imposition of penal sanctions with regard to a breach of terms or conditions of a licence. The committee concluded that section 36(2) of the Ontario Fisheries Regulations is not authorized by the enabling legislation, trespasses unduly on the rights and liberties of the subjects, and makes an unusual and unexpected use of the powers delegated by the Fisheries Act.

As indicated in the covering note, the government has undertaken to amend the Fisheries Act for greater certainty. It will then be up to parliamentarians, of course, to decide whether or not it is good legislative policy for the breach of conditions imposed in the exercise of an administrative power to be dealt with in the same manner as a breach of conditions imposed in the exercise of a legislative power.

Minister Dhaliwal mentioned that this amendment would be proposed to Parliament at, and I quote, "the next appropriate opportunity pending the completion of the comprehensive policy reviews currently underway." I expect "pending" in this case means "after."

As well, we do not mention "a policy review" but "policy reviews," in the plural. "Policy review" is never a good expression to hear, when one is waiting for amendments. "Policy reviews," in the plural, probably means that members should not be too optimistic that this amendment will be introduced any time soon.


The Joint Chairman: Are there any comments?

Senator Nolin: We are being asked to adopt these regulations. I do not understand, because this item has appeared on our agenda several times.

The Joint Chairman (Senator Hervieux-Payette): These regulations are all currently in effect. At some point in time, we review them, uncover mistakes and take corrective action.

Senator Nolin: Do we not have the power to suspend the regulations?

The Joint Chairman (Senator Hervieux-Payette): No.

Senator Nolin: We have brought this oversight to the government's attention and it has said that it will bring in a legislative amendment to correct the problem.

The Joint Chairman (Senator Hervieux-Payette): Yes, when the department reviews its policies. Counsel for the committee has stated that a departmental policy review can take anywhere from one to five months. That is about the standard amount of time.


Mr. Wappel: The committee issued a report to Parliament on or about March 23, 2000. We requested a comprehensive response from the government. Has that been forthcoming?

Mr. Bernier: Yes, Mr. Wappel, that is what is being discussed today. That is the letter.

Mr. Wappel: That is hardly a comprehensive response. Is that what the government considers to be a comprehensive response to the report?

Mr. Bernier: Yes.

Mr. Wappel: What is our next step if we do not consider it to be a comprehensive response? I consider it to be a brushoff. Normally, when the government responds to a report submitted to Parliament it refers to the points made and either agrees with them or disputes them. In most of the cases that we do, and most of the reports that we do, when the government responds, that is how they do it. This is hardly a response in what I would say is the normal course of events. What is your view on that?

The Joint Chairman (Senator Hervieux-Payette): I think you are right, Mr. Wappel.

Mr. Wappel: What do we do about it is my question. Can we ask the government for a proper comprehensive response rather than a brief letter from the minister? Was a letter filed?

Mr. Bernier: There certainly is precedent, Mr. Wappel, for the committee writing back to a minister in any case in which the committee is not satisfied with a government response. That has been done on more than one occasion.

Mr. Wappel: Let me pursue this. If the government is supposed to table a comprehensive response, that is in the House of Commons, is it not? It is not a letter to the committee chairs.

Mr. Bernier: This was tabled, Mr. Wappel. If you look at the bottom of the document, you will see the sessional paper document stamped there. It indicates that this was filed as a sessional paper.

Mr. Wappel: I see. I would consider it, certainly, an insufficient response.

Mr. Bernier: Or a brief comprehensive response.

Mr. Wappel: It is neither comprehensive nor sufficient in my view. We should write to the minister and ask for the actual arguments that were used in the report either to be agreed with or to be refuted by legal arguments.

I think it is ridiculous to suggest that we wait, when our report said that it interferes with the rights of citizens. It is ridiculous for us to wait around until policies are discussed and developed over a course of years when the rights and liberties of citizens are being affected by illegal regulations.

Senator Banks: Does this mean, counsel, that someone could, in the interim, be improperly imprisoned?

Mr. Bernier: Certainly, if you accept the committee's position on that section, yes, that would be the result. Someone could either be fined or imprisoned for contravening a condition of a licence. As far as the committee is concerned, the position taken is that the only sanctions that may be imposed for breach of a licence condition is suspension or cancellation of the licence, for example, administrative sanctions, not penal sanctions.

Ms Barnes: As a newer member of the committee, I would like to know whether this is a ministry that routinely answers in this manner. Can you comment on that? Or is this the first time that you have had this type of response?

The Joint Chairman (Senator Hervieux-Payette): There are a few ministries that do not like our committee and do not necessarily take it very seriously. We have others doing a great job.

Ms Barnes: My question is: Where does this one fit?

The Joint Chairman (Senator Hervieux-Payette): It is more that there are certain areas in which people are not happy. When the department says "considers its ability to act in this regard is legally sound," they do not give us the answer.

Ms Barnes: This is a very unsatisfactory answer. We should go to whatever the next step is in our sanctions. This is unacceptable.


Senator Nolin: I see here that Ontario regulations are part of the problem. Have any other provinces fallen in step?

Mr. Bernier: In this particular instance, the regulations are federal, that is to say they were adopted by the Governor in Council, the federal Cabinet. However, they do not apply to fishery zones in Ontario. Obviously, each province has its own similar regulations.

Senator Nolin: And has the same problem arisen?

Mr. Bernier: Yes. This provision was only recently introduced, with a view to making it a criminal offence under the law to contravene a condition of licence. That is why the committee selected and reported on this case. Obviously, any solutions devised will apply to all other regulations.

Senator Nolin: Then, somewhere out there, there must be Quebec Fishery Regulations.

Mr. Bernier: That is correct.


The Joint Chairman (Senator Hervieux-Payette): Are there any other interventions? Yes, Mr. Knutson.

Mr. Knutson: I was wondering if at some point we would invite officials to explain their legal reasoning as well, perhaps accompanied by representatives with whom they deal in the Department of Justice.

The Joint Chairman (Senator Hervieux-Payette): We can do both. We can write to them. If their report is not satisfactory, we will ask them to appear before the committee. They should answer in a reasonable fashion every point raised in our letter.

In order to cope with the volume of work we have, we have to receive a satisfactory answer within a certain period of time. We know that if we do not mention a time frame they will come back to us very late. We will ask them to send us a satisfactory answer before the end of April. If we do not receive a satisfactory answer, we will then decide the next step to take.


The Joint Chairman (Senator Hervieux-Payette): I forgot you, Mr. Lanctôt. Is everything alright?

Mr. Lanctôt: Yes.

The Joint Chairman (Senator Hervieux-Payette): I say that senators who fish illegally should be jailed!


(For text of documents, see appendix p. 3A:1)

The Joint Chairman (Senator Hervieux-Payette): The next item on our agenda is SOR/95-252.


Mr. Bernier: In this case, Madam Chairman, the minister has undertaken to clarify the intent of section 3.2 of the regulations as requested by the committee. Therefore, this is satisfactory, and will be monitored in the usual way.

The Joint Chairman (Senator Hervieux-Payette): We are happy with it, then.



(For text of documents, see appendix p. 3B:1)

The Joint Chairman (Senator Hervieux-Payette): The next item of business is SOR/96-476.

Mr. Rousseau: Three points were raised in connection with this item. The department promised amendments with respect to the second point. As for points one and three raised in the letter sent to the department, the response is unsatisfactory. The department does not appear to have grasped the problem. I think we should write to the department reiterating our position. Regarding point number three, it is true, as the department noted, that the enabling clause referred to in my letter was amended in 1996, but this particular amendment is not pertinent to the problem at hand.

The issue is whether the Governor in Council has the regulatory authority to decide the maximum fine to be leveled for any offences committed, or whether he has the authority to impose a fine. The English version of the legislation provides that the Governor in Council may make regulations,. At the time, I would like to quote the relevant provision to you.


- "prescribing a fine not exceeding five hundred dollars..."


Pursuant to the French version of the legislation, the Governor is Council is authorized to level a fine of up to $500. The English version states that the Governor in Council may impose a fine not exceeding $500.While the French version may appear somewhat ambiguous, as explained in the letter to the department, when the history of the legislation is reviewed, we see that the French version, like the English version, authorizes the Governor in Council to make regulations setting the maximum amount of the fine at $500. I admit that the department's response is rather difficult to comprehend.

The department refers us to section 738.3(2) of the Criminal Code, which has nothing whatsoever to do with the interpretation of legislative provisions. This provision concerns the application by the judge of the sanctions set out in acts and regulations.

Finally, even if we accept that the Governor in Council has conferred upon Parliament the authority to set the maximum allowable fine rather than the exact amount of the fine, one must conclude that under the circumstances, section 39(1)a) of the regulations is invalid because not only does it set a maximum amount, it also provides for specific amounts.

In his letter, the department makes no mention whatsoever of this matter. At this point in time, Counsel recommends that another letter be sent to the department explaining why the response provided was deemed unsatisfactory.

The Joint Chairman (Senator Hervieux-Payette): Are there any questions?


Mr. Wappel: Mr. Rousseau, I may have missed this in your opening remarks. I am sorry if I did. Could you comment on the so-called explanation of implicit meaning on page 2 at the top of their letter of September 27? Do you agree with that?

Mr. Rousseau: No, I do not agree with that. It seems they are saying that the regulation is just clarifying what the act says. That is not the point. The point is simply that there are words in the regulation that should not be there, just because of the way the enabling power is drafted.

Mr. Wappel: What I am getting at, Mr. Rousseau, is that they accept your citation of Driedger, and they accept that the regulation, as they put it, could have been drafted differently. Of course, they do not say "should" have been drafted differently. They accept those two points but then presume to justify their drafting by saying it is understood implicitly.

Mr. Bernier: Mr. Wappel, if it is implicit, the creation of the offence is implicit in the act. It does not matter if it is implicit or explicit. The essential point is that it is the act that creates the offence. Here we have a regulation that is drafted in a way that it suggests that the regulation is creating the offence. We are saying that the words "is guilty of" in the regulations are redundant. They admit it is already in the act. It is the act that creates the offence, so why do we have regulations that do anything else but simply stipulate that the penalty with respect to a person who has contravened is such and such?

Mr. Wappel: Mr. Rousseau, your suggestion, then, is to pursue both points one and three again?

Mr. Rousseau: Yes.

Mr. Wappel: With a further letter explaining our position and asking them to come around.

Mr. Rousseau: Exactly.

The Joint Chairman (Senator Hervieux-Payette): In this case, it is a technicality of legislating and regulating. They seem not to understand. They do not seem to grasp our argument in terms of technically drafting it.


Mr. Lanctôt: In our explanatory letter, not only should we outline our position, we should also insist that this be done by way of regulations, not through legislation. Not only should we outline our position, we should also seek to have the situation rectified. I see a difference. I do not know whether you agree with me or not.

The Joint Chairman (Senator Hervieux-Payette): The problem here is their failure to grasp the fundamental issue. We should address the substantive issues first and then correct any drafting problems. However, first we must agree on substantive matters.


Senator Moore: Can we also ask for a reply by the end of April?

Mr. Rousseau: That would be a very short time.

Mr. Wappel: How about the end of May?

Mr. Rousseau: Of course it is up to the committee, but experience tells us that three weeks is a very short period.

Senator Moore: They have already thought about it. This is not like a new file for them.

Mr. Rousseau: It could be a new file to the person who will be dealing with it the next time we write.

The Joint Chairman (Senator Hervieux-Payette): Let us make a compromise. Let us say the end of May, and then we might receive a decent answer.



The Joint Chairman (Senator Hervieux-Payette): The next item of business is SOR/83-654.

Mr. Rousseau: The department has reported on progress made in connection with two problems identified which have yet to be resolved. First, there is the matter of the designation of 56 harbours, the public status of which remains unclear. In its letter of May 25, 2000, the department announced to us that the status of 22 harbours had been resolved under the regime of the Canada Shipping Act, while 34 other harbours will be designated as public harbours under section 65 of the same act. While checking further into this matter in preparation for today's meeting, counsel found that the harbours in question had yet to be so designated. Therefore, at this stage, it would be a good idea to write to the department requesting a further status report on the situation.

Secondly, in a letter dated August 1, 2000, the department confirmed that the Public Harbours Regulations will be replaced and that the promised amendments will be part of the new regulations. The department also announced plans to publish draft regulations by March 31, 2001. I think a letter to the department requesting a status report would be in order.

The Joint Chairman (Senator Hervieux-Payette): Are there any questions? Is everyone agreed on this course of action?

Hon. Senators: Agreed.



The Joint Chairman (Senator Hervieux-Payette): The next items of business are SOR/90-111 and SOR/91-558.

Mr. Rousseau: Regarding these items, the Canadian Food Inspection Agency has confirmed that the amendments promised to the committee will be adopted before the new Canada Food Safety and Inspection Act is passed into law. Counsel for the committee will monitor this situation closely and keep the committee apprised of any developments.

The Joint Chairman (Senator Hervieux-Payette): They agree with our suggestions and have promised to make the requested changes. This has not yet been done, but we are keeping a eye on them.

Mr. Rousseau: We have agreed to speed up the process by not waiting until the new legislation is enacted. This matter is well on its way to being resolved.

Mr. Lanctôt: What time frame are you looking at for follow up action?

Mr. Rousseau: As a rule, we get back to the department in four months. We have probably reached the point where we should write back to the department. Since the committee has agreed to this, we will draft a letter advising the department that if everything continues to go well, and when we receive an answer, we will then advise committee members accordingly.


The Joint Chairman (Senator Hervieux-Payette): The next item of business is SOR/98-524.

Mr. Rousseau: In a letter dated June 8, 2000, the department proposed the text of an amendment that would resolve the problems identified. Counsel is of the opinion that the proposed amendment is satisfactory. The department is awaiting the committee's response. If the committee agrees with Counsel's position, then we will contact the department and advise it to proceed with the planned amendment. Good progress is being made on this file.

The Joint Chairman (Senator Hervieux-Payette): Are you satisfied with the new version?

Mr. Rousseau: With the amendment, yes.

Mr. Wappel: I just want to say it is a pleasure to read, on occasion, a sentence like, "If you can consider the following amendments satisfactory, we will include it in the next amending regulations." It is nice to see it once in a while.

The Joint Chairman (Senator Hervieux-Payette): We should send them a letter of congratulations, to encourage them.






The Joint Chairman (Senator Hervieux-Payette): We now move to those items under the heading "Progress"

Mr. Rousseau: Madam Joint Chairman, I would like to mention two things. First of all, the amendments promised in the second paragraph of the department's letter have been carried out. Therefore, things are progressing quite well on that front.

As for the final two paragraphs of the department's letter dated September 11, 2000, an explanation is given as to why it could take several months before the promised amendments are implemented. We are told that these amendments will be made when an entirely new set of regulations are adopted. That might well mean that several months or more could elapse until such time as these amendments become a reality.

Counsel is proposing that a letter be sent to the department requesting a status report. When new regulations are announced, we can expect longer delays.

Senator Nolin: I understand that the issue here is optional survivor benefits, pursuant to section 25(1). Is this in fact the stumbling point?

Mr. Rousseau: All of these items have to do with survivor benefits and, as the department notes, there have been fairly significant legislative changes in this field. Instead of merely making changes to the text itself, the department wants to bring in an entirely new set of regulations. At issue is section 25.

Senator Nolin: Section 25 defines a survivor. Is that correct?

Mr. Rousseau: The aim is to modernize the legislation to take into account common law and same sex couples.

Senator Nolin: It is important to monitor this situation very closely.

The Joint Chairman (Senator Hervieux-Payette): Since I have to leave shortly, I would like us to take a look at the document that was distributed to you. There appears to be two budgets: one for the five representatives who will be taking part in the trip to Australia, and another for 10 representatives. They are for the same trip and same dates. Some consultation with the parties who approve the budget are in order. I will call upon the clerk to speak to us about these two budgets.

The Joint Clerk (Mr. Till Heyde): As the Joint Chairman said, you have two budgets before you for consideration. The first one - identified by the letter A - represents a budget for ten members who would be travelling to Australia. The second one - identified by the letter B - represents a budget for five members.

In each case, two staff members would be accompanying the delegation. Further to last week's discussion, I contacted various travel agencies to inquire about possible fare discounts. It is possible to obtain tickets for $9,000 instead of $10,000. It would all depend on demand at the time of the bookings.

The third document is the budget that was approved in 1999 when committee members traveled to Sydney. As you can see, there is quite a substantial difference in the air fares. In the 1999 budget, we had recommended that all committee members fly economy class. Ultimately, five members were able to fly business class.

This budget is based on business class tickets. If you wish to make changes, I can always quote you alternative air fares.

The Joint Chairman (Senator Hervieux-Payette): The travel time to Sydney is 24 hours and flying business class is not really a luxury in this instance.

In 1999, we flew non-stop from Los Angeles to Sydney. I cannot imagine people sitting at the back in the economy section, since this flight is part of our duties.

Moreover, there is an explanation for the significant difference in air fares. All airlines have increased their prices because of higher fuel costs. Two years have elapsed since our last trip to Australia. Our staff checked out all of the options.


If we have members who will use their points, then it will bring down the cost, there is no doubt about it. Before we decide that, however, we have to decide on the number. That would then give us a little bit of flexibility with regard to the budget depending upon on who wants to come and who has points.

As I mentioned to Ms Barnes, some people travelling by car every week do not gain millions of air miles. So some people have them and some do not. However, we cannot make a decision based on that assumption. We would certainly welcome that.


The Joint Clerk (Mr. Till Heyde): Just to confirm your statement, Madam Joint Chairman, while doing my research, I discovered that in two years, the air fare to Australia and South Africa had increased by one third, and even more in some cases. In terms of points, a trip to Sydney would use up 100,000 points.


Mr. Wappel: Madam Chair, I was going to suggest that we request permission to take 10 people. I do so for this reason, and I want to put it into some perspective.

I am a member of the Fisheries Committee. We have requested permission from the House for 10 members, if I am not mistaken, to travel to the East Coast for five days. Our budget for travelling to the East Coast of Canada is $118,000. I do not think $179,000 for 10 members going to Australia is in any way unreasonable when compared with other committee travel, even within this country.

That says a lot about air travel in general, but we will not get into that. I think that we should request that 10 members travel. It may very well be that that request will be whittled away by the appropriate committee, denied completely or whatever, but it seems to me that we should try for it.

Second, and this is absolutely correct, the budget is, perhaps, padded a little bit. I am sure if we approach the airlines or a travel agency with a request for 10 tickets, they will do something for us, never mind points - which, again, I agree would reduce the cost even more. The earlier we book, the less the flights cost. I really do think we should go for the 10. If it turns out that 10 people do not wish to go, which I suppose is possible, we again save money. That is my view.


Senator Nolin: I have a few comments to make. If we take Mr. Wappel's example and draw a comparison with a committee traveling within Canada, we must remember that it not merely the number of members travelling that accounts for the difference. There is also transportation costs for interpreters and for reporters, which combine to increase the overall cost.

Furthermore, I disagree with the idea of having the two staff members travel economy class. I do not see why they should have to fly economy class given that according to Treasury Board, public servants are entitled to fly business class on flights lasting more than nine hours.

Depending on which travel agency we use, I am convinced that if you say you are willing to pay 10 or 12 times the full economy fare, every one will be seated in business class without your having to pay a penny more. The committee should budget for business class air fare. If you negotiate properly, you should have some money left over. To my knowledge, Internal Economy has increased the budget to account for the increase in air fares. It is not out of line to make this request. I do not wish to presume anything, but I believe the money is there to cover this expense.

Mr. Myers: I agree with what has been said up to this point. I think, too, that staff should go business class. That is only appropriate.

I would be interested in our co-chair Mr. Pankiw's views on this, because it has been my experience in the past that when it comes to travel budgets the Alliance has put the kibosh on some of this. I wonder if you will support us on this.

The Joint Chairman (Mr. Pankiw): Yes, I think it is a good idea that we go. As for putting the kibosh on committee travel, there may be political reasons. This being a non-partisan committee, it would not apply here; however, in other committees, if certain concessions are not made to accommodate the wishes of the Official Opposition the way that the Alliance has chosen to deal with that is to deny travel in order to get the concessions they want. I do not think that applies here.

Mr. Myers: Will you go to bat for us?

The Joint Chairman (Mr. Pankiw): I will support the wishes of the committee, yes.

I have a rhetorical question, or perhaps Mr. Wappel could answer this. It seems to me there would be two approaches here. You may be implying that we go for 10 and perhaps get that whittled down to six or seven, or else we determine who wants to go, establish that number, and it may be seven or eight, and go with a hard and firm position. I have no experience in approaching the Liaison Committee for a travel request like this. My question to you, Mr. Wappel, is this: Are we best to go high, expecting that we will negotiate down, or should we establish who wants to go, determine a firm number, and go for that in sort of a predetermined fixed position?

Mr. Wappel: Mr. Chairman, I would respond this way: I think we should go for 10 and accept nothing less. We may have to, but I do not think we should negotiate. I think we should ask for 10 and explain why. As far as canvassing the members, the problem is that there are far more members on this committee than ever show up at any particular meeting. If one is prepared to call each and every one and explain to them what we are doing and ask if they are coming and require a decision within 24 hours, by the time you canvass everyone, we will never get a decision. I think we approach it on the basis that 10 will go, and if we do not fill 10 spots, we save the money. If we do fill the 10 spots, and this is non-partisan, it will have to be based on a number of reasonable factors from the Senate and from different parties. All of those things need to be considered.

If I were answering you, I would say to go with the 10 and fight for the 10 all the way. We may have to walk away with less, but I would not compromise for less. I would ask for 10 all the way and explain it. They will be looking at it as a total budget. Instead of giving us X, they may give us X minus Y. When we know what our total budget is, then our Clerk can negotiate with the travel agents, and even then we may get 10 depending on how much negotiation is done in terms of the fares. My answer to you would be to go for the 10 and fight for it.

The Joint Chairman (Senator Hervieux-Payette): We have actually seven people who have requested to go, and we have not campaigned. We have 24 members on the committee. If we make just a slight effort, the 10 spots will be taken.

Ms Barnes: Madam Chair, very early on, if we are going to be doing this, the Canadian delegation should request speaking spots on the agenda and to lead some panels. There is expertise in this room. I do not want to go with a large delegation or a moderate sized delegation and not be seen. We have that ability, and if we are going to be there, we have to be vocal and we have to be leading. I know we would do this anyway as individual participants, but when you are planning an agenda like they are, they would like to hear about people who can lead panels earlier rather than later.

I know that when I have been asked to travel internationally by some organizations they will provide an economy ticket, and I have several upgrade certificates. If your travel accommodation is done early enough, it is possible to pay an economy fare and use your certificate for upgrade. As a group, that is another aspect to pursue.

I once travelled internationally that distance economy, and I would not wish it on my worst enemy, not if you are getting up the next day and doing work. There are people in this committee who would be willing to at least attempt, as a first step, to see if we can use economy and then use upgrades. I would certainly encourage people doing that.

With the transference of our programs to so many airlines, we are not committed to any one airline right now. We have a number of airlines we can approach for the most reasonable deal. I agree with my colleague Mr. Wappel that the earlier we do this the better. I encourage participation, and I think in the interests of the taxpayer we do it as modestly as we can, but at the same time we should go there with sufficient force to make an impact and a contribution.

The Joint Chairman (Mr. Pankiw): Ms Barnes, you attempt to use the upgrade certificates when you are boarding the plane, if there is a spot available. Certainly shopping around for the best deal is advisable.

Ms Barnes: You can put yourself on a waiting list immediately, with your upgrade, and I have done this within the last several months. That can happen if it is a booked flight, but most of the flyers in this room are fairly frequent.

Mr. Wappel: Time is of the essence; the earlier the best.

The Joint Chairman (Mr. Pankiw): As far as your request for an active role in the conference itself, I think it is a good suggestion, but first we should ascertain if the trip is approved.

The Joint Chairman (Senator Hervieux-Payette): At this moment, we can give them an expression of interest, saying we are working towards it and are talking to other parliamentarians. They know how the system works. It is the same thing in almost every parliament. We are now seeking the proper authority to travel and are doing the necessary steps.

I must say that last time we had very good participation from this group. I agree with you about being on the program. Considering the very recent legislation now before us on the civil code, we are in a unique position with regard to regulations in the countries we are going to meet, so we can make a very good contribution. I would imagine that our unique experience is certainly worth not just participating but making a presentation. I agree with you.

We have a consensus on 10. Agreed? We will manage it the best we can, and having an early request will probably mitigate the cost, because we are talking about July. When you go three or four months ahead of time, it is always more feasible in terms of travelling cost.


Senator Nolin: Is the House of Commons required to use a designated travel agency?

The Joint Chairman (Senator Hervieux-Payette): No.

Senator Nolin: We do not have this problem at the Senate.

The Joint Chairman (Senator Hervieux-Payette): Several agencies have already been contacted. We must not allow our budget to be highjacked for the sake to airline tickets. Last time, we managed to find a good deal. We paid $2,5000 for business class seats.

Of course, prices are higher today because of higher fuel costs. However, there is quite a difference between $2,500 and $10,000. In my opinion, if we could agree on $4,000 per seat, then everyone would be pleased with the outcome. We are looking at getting some kind of group rate, rather than at individual seat prices.

The last time the committee traveled, some members were accompanied by their spouses who of course paid their own expenses.


Spouses are welcome, providing they pay for their plane tickets. Those of you who want to participate tell us if you will be accompanied by your spouse or someone else. It is important that we know in advance. The more we are the better the deal. If we are 15 or 16, we might get an even better deal.

The Joint Clerk (Mr. Heyde): Just to clarify one thing, it is the Commons budget.

Is it the committee's wish that at least for the initial submission the two staff be put down as travelling in business class?

Hon. Senators: Yes.

The Joint Clerk (Mr. Heyde): I will make that adjustment and bring it forward to the appropriate authorities.


(For text of documents, see Appendix p. 3C:1)

The Joint Chairman (Mr. Pankiw): We are now on SOR/92-446, Transportation Safety Board Regulations.

Mr. Bernier: Mr. Chairman, in this file the committee now has a firm undertaking that section 10(1) of the regulations will be amended in the manner requested by the committee to make it clear that the board's authority to impose conditions on observers flows strictly from the statute and not from the regulations.

As for section 10(3) of the regulations, that section essentially gives the board the discretion to allow observers to attend witness interviews. The authority delegated by Parliament is an authority to make regulations defining the rights and privileges of observers.

A regulation that grants a discretion to allow observers on a case-by-case basis cannot be said to be a regulation defining the rights and privileges of observers. In his reply, Mr. Harding indicated that I was to hear from their legislative drafter regarding this matter. This has not occurred and a further letter should go on this point.

At the same time, the board should be queried as to when other amendments that have been promised to the committee might be made.

Mr. Wappel: Mr. Chairman, this is the second of two letters that I thought were very accommodating. However, I am dismayed to hear that you have not heard yet from Ms Silverstone. What about the suggestion that you meet? Has that happened?

Mr. Bernier: We spoke by phone, Mr. Wappel. There is hardly any reason for us to meet. The outstanding objections of the committee had to do with sections 10(1) and 10(3). Section 10(1) is now settled. With regard to section 10(3), they presumably have their legislative drafter devising a new subsection.

Mr. Wappel: The only reason I am inquiring about it is that Mr. Harding specifically stated in writing a line of communication other than letter writing. I am wondering if you had followed up with him by telephone as to why Ms Silverstone had not contacted you when the promise was made in January that it would be shortly.

Mr. Bernier: No, Mr. Wappel.

Mr. Wappel: Could I suggest you do that? In my experience, so few of these people concerned with at least the files that are brought to us offer lines of communication. It seems to me that if someone is suggesting a telephone call it might be a good idea.

Mr. Bernier: In my opinion, in any case, that is exactly the problem with those kinds of communications. They cannot be brought back to the committee. What I need to bring back to the committee is something in writing. I do not think it would be satisfactory in the long term for counsel to come back to the committee with, "I spoke to so-and-so, and he said that and I said this and he said that."

Mr. Wappel: You send an e-mail stating, "Further to our conversation this morning, I wish to confirm that you indicated that Ms Silverstone will contact me within two weeks. I appreciated our conversation. Yours very truly..."

That is in writing and can be brought to the committee, and yet you have still communicated. I am not trying to suggest how you do your work, but it seemed to me that this person was indicating a willingness to work in a cooperative, friendly manner with the committee. That is how I read the letter. Perhaps I am overly optimistic. That is why I was suggesting that.

When you deal on the telephone, as you well know as a lawyer, you can always confirm the conversations in writing. If that letter is not countermanded, it is taken to be true.

Mr. Bernier: I might say, Mr. Wappel, and this is just to complete the information, that Mr. Harding contacted me in this friendly manner more than two years after I first wrote to him, and only after I wrote to the chairman of the Transportation Safety Board of Canada asking for an answer.

Mr. Wappel: Yes, I saw that.

The Joint Chairman (Mr. Pankiw): Okay, so a letter to follow.

The next item is SOR/96-112, Territorial Quarrying Regulations, amendment.


Mr. Bernier: Mr. Shanks in this case is providing a satisfactory reply to the query put to him, Mr. Chairman.

The Joint Chairman (Mr. Pankiw): The next item is C.R.C. c.1238 - Northwest Territories Reindeer Regulations.


Mr. Bernier: In this case, the committee had various concerns with these regulations, including some that went to the legality of a particular provision, as well as other provisions that conferred an overly broad discretion on the minister. Those were communicated to the appropriate department in 1983. In May of that year, amendments were promised on most points. The committee was told that these would be made when the regulations were revised, and I quote, "in the very near future."

I am afraid it has been downhill from there. To detail every twist and turn this file has taken since then would take too long. At one point, the regulations were to be revoked. This had to wait until the conclusion of negotiations between Ottawa and the Government of Northwest Territories over the transfer of legislative responsibility for the reindeer. That was in 1989.

By 1992, the Government of Northwest Territories had confirmed that it was not interested in the proposed transfer of the legislative authority. The department then announced that its preferred option was simply the revocation of the regulations.

It was then later determined that the Department of the Environment should add reindeer to Schedule B of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act before the regulations could be revoked.

The chairmen wrote to the Minister of the Environment on the foot-dragging in her department in the spring of 1998. The minister replied that work would get underway with a view to a timely resolution of the matter.

The committee has the last progress report from Mr. Sinclair. In this case, I am afraid we are barely moving along.

According to Mr. Sinclair, the next action in this file will be to reassess their options on revision versus revocation of the regulations in consultation with the Department of Justice. We are engaging in the same exercise that the department engaged in between 1983 and 1989, and which led to the department saying, "Our preferred option is to revoke." I suppose probably all the people who were involved then are dead or gone, so we will start again.

Ms Barnes: Our extreme reaction to this would be to do a disallowance; is that correct? What would get their attention, perhaps, is sending a letter stating, "Since this file has gone on so long and since we have seen no further resolution and since your preferred options are what was suggested at the first instance, please be advised that this committee will consider a disallowance of your regulations if you do not convince us in writing otherwise within one month."

Let's put a fire under them.

Mr. Wappel: A bonfire; excellent.

The Joint Chairman (Mr. Pankiw): Is that your recommendation, Mr. Bernier?

Mr. Bernier: It is certainly possible, if that is what the committee wants to do, Mr. Chairman.

Senator Moore: It cannot get any worse, Mr. Bernier. Go for it.

Mr. Bernier: The only cautionary question I would ask is this: Should the committee accept to do the work that departments are not willing to do? It is their responsibility. It almost seems to be doing them a favour to have the committee use its disallowance power to do what they should be doing, which is to make a decision and act on it. It is "la voie de la facilité." That is my only comment. It is possible. It is a regulation made by the Governor-in-Council, so it is subject to disallowance.

Ms Barnes: My only concern here in putting forward such a firm position is that I have no real knowledge of the substantive issue with the reindeer in the most affected area. I do not know if there is anybody on this committee who has knowledge and can address that issue. We do not want to just be using our power to use our power. We need to use our power in a good manner. Maybe our counsel or some of our own members have knowledge of someone who will be extremely adversely affected.


Senator Nolin: Negotiations are currently underway with the Americans regarding the construction of a pipeline. I do not know if there is some connection between this fact and the migration of Northwest caribou herds, because the pipeline construction will affect migration zones. I am not aware of any link between these two types of animals, but if there is a problem, it will be international in scope. Relations with the Americans will be affected. That is a qualified remark. Surely we can obtain more information by consulting our colleagues from the various environment committees.


Mr. Wappel: I am not on the environment committee, Mr. Chairman, but I do believe I am accurate in saying that there is a difference between reindeer and caribou, and that the affected area that Senator Nolin is talking about is in Yukon. These are the Northwest Territories' reindeer regulations. I think we are talking about animals that will not be in the affected area.

There still might be some sort of link, I suppose. As far as the history of this matter is concerned, it is shrouded as long as the reindeer have been migrating, as far as this committee is concerned. Who can remember from 1983? Who is here from 1983?

I agree with your suggestion completely, Ms Barnes.

Senator Banks: Mr. Wappel is right about the difference between the two. In any case, the current information is that President Bush has determined that, at least in the short and medium term, he is not going to be able to proceed with the Alaskan development. He cannot push that through. That threat seems, at least at the moment, to be less than it seemed three weeks ago, regardless of which of the various Arctic pipeline options are pursued.

That was the point I wanted to make. The deal is off for the moment, at least.

Mr. Myers: Mr. Chairman, I would like to ask Mr. Bernier what his recommendation would be, because he has been on this file for a while and I am curious as to what he thinks the course of action should be.

Mr. Bernier: Disallowance I think is an option, certainly, which is open to the committee. At the minimum, the committee should pursue this matter at the minister's level and go back to the minister's level, because we were there at one point.

Other possible options, I suppose, are somewhere in between business as usual and the nuclear option of disallowance. It would be a detailed report where the committee would provide all the sordid details of this tale in a report to the Houses.

Mr. Myers: The reason I asked, Mr. Chairman, was to say that we can proceed by turning a blind eye or we can, to use Mr. Bernier's expression, go nuclear. I prefer to do neither. I prefer to do what Mr. Bernier indicated and that is to present the report.

I am afraid if we go the route that has been suggested by Ms Barnes, we might in fact be letting them off the hook, in some kind of twisted way. I do not want to see that happen, as we would be letting them get away with something. I would prefer the report option outlined by Mr. Bernier. I think that strikes the balance that is required in this case, putting it to them but not all the way.

Senator Banks: I am a substitute member of the committee; I barely know what we are talking about. However, I have a question and a suggestion.

I would put the following question to counsel: If you use the disallowance provision, would that leave some things unregulated, for however short a time, which ought in fact to be regulated by someone somewhere?

Second, it might be of interest to members, and it would be easily obtainable, to have a meeting in two weeks, at which you could invite two members of the Senate who have direct hands-on, horse's-mouth experience of the on-the-ground application of these regulations. They are two Aboriginal, northern members of the Senate who know intimately the important and direct on-the-ground effects on these reindeer herds.

Mr. Bernier: Certainly, I agree with Senator Banks. Before moving down the route of disallowance, we need to look at all the provisions involved here. As I say, I looked very quickly at some of them. You have, for example, a provision allowing for the issuance of permits for the export of reindeer meat. There might be concern there.

I am looking through this file. I recall there is much correspondence here. I recall an earlier letter stating that there were, I think, only one or two commercially exploited herds in the Northwest Territories in any event at the time.

Senator Banks: Right. As you have just pointed out, if someone were watching closely enough and there were a lapse in the regulations, those herds could be obliterated.

Mr. Bernier: What we had here in 1992, at the very least, was a statement by the Department of Indian Affairs that there does not appear to be any future need for the regulations specifically dealing with reindeer. The department concluded that other existing pieces of legislation would likely address the need to control the export and management of reindeer.

I think the need to include reindeer in Schedule B to the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act flows from there. The only need there is in terms of control of export of the meat. I think the department, over the last 10 years, has been moving more toward a direction of, "We will not actually manage commercial herds through a licence permit system.

Senator Banks: Forgive my asking, as I cannot remember exactly what you said. With respect to adding the reindeer herd to the schedule in the other act, has that been done or is that proposed?

Mr. Bernier: I would have to go back to my notes here. That was one of the things we waited for.

Senator Banks: We do not need the answer now.

Mr. Bernier: It has not been done.

Senator Banks: Then we do not want to suspend or in any way negate the present regulations until that has happened.

Mr. Bernier: If it is still needed. There now seems to be backtracking on the part of the department in that adding to Schedule B of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act does not seem to be an option. As I said, the last progress report stated, "We are now reassessing all our options."

Ms Barnes: I just want to remind us that my suggestion at the outset of this discussion was not for an immediate disallowance but to write and say, "In one month's time, we will proceed to disallowance." If they offer another suggestion, we can put that same letter out but have their legal counsel here at our next meeting to convince us why we should not proceed in such a manner. Either they proceed on removing the regulations themselves or they have us do their dirty work for them.

Mr. Bernier: Perhaps, Mr. Chairman, the letter can say exactly what the member has just said, "The committee will consider disallowance unless there is some indication..."

Ms Barnes: That is what we will do.

Ms Barnes: There is a time line here, though. Let us give them until May 15, which is six weeks.

The Joint Chairman (Mr. Pankiw): We will now move to "Action Taken."


(For text of documents, see Appendix p. 3D:1)



(For text of documents, see Appendix p. 3E:1)



(For text of documents, see Appendix p. 3F:1)


(For text of documents, see Appendix p. 3G:1)


(For text of documents, see Appendix p. 3H:1)


(For text of documents, see Appendix p. 3I:1)

Mr. Bernier: Mr. Chairman, with regard to all these instruments, we have a total of 15 amendments that have been made at the request of the committee. Before the question is asked, there is also a total of 60 instruments reviewed by counsel and submitted without comment.


Mr. Lanctôt: I would like to comment briefly on the migratory bird regulations. Most regulations do not cause any problems, but these raise a particular concern. Consideration is being given to increasing the number of migratory birds from 125 to 200. This would be considered game for dog training purposes.

Other regulations specifically mention when it is a matter of surplus birds, but that is not the case with these regulations. The regulations were registered on October 6, 1999. Why not take these into account then and take matters one step further, because the number of migratory birds is virtually being doubled. What reason is there to believe that this will not make a difference in the bird population considered as game? There is nothing in the file to indicate that this would not have an impact of some kind.

Mr. Bernier: It is a policy matter. It is not something that either the committee or counsel generally consider. However, if you can give me the registration number, I will certainly put the question to the department.

Mr. Lanctôt: I would appreciate that. Currently, it is not a problem, but after looking at the regulations, I am not convinced by the explanation that was provided.

Mr. Bernier: It is not very clear.

Mr. Lanctôt: It is very arbitrary. The regulations refer to a moderate increase in current numbers whereas in reality, the figure is doubled. Is this the best possible solution? I am not convinced. Is this the result of some lobbying efforts? SOR/99-393 was registered on October 6, 1990.

The meeting is adjourned.

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