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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 15 - Evidence, November 17, 2005

OTTAWA, Thursday, November 17, 2005

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

Mr. Rob Anders (Joint Chairman) in the chair.

[English]

The Joint Chairman (Mr. Anders): Good morning. We will begin with the Special Agenda Item. Counsel, please proceed.

CANADA NATIONAL PARKS ACT, S.C. 2000, c. 32 s. 24(3)

(For text of document, see Appendix A, p. 15A:1.)

Mr. François-R. Bernier, General Counsel to the Committee: In a letter of October 15, 2001, counsel pointed out to the Department of Canadian Heritage that, as a result of the imposition by Parliament in section 24(3) of the new Canada National Parks Act of fines payable for contraventions of a condition of a permit, licence or other authorizing document, any such licence or permit issued after February 19, 2001, must be considered a regulation to which the Statutory Instruments Act, SIA, applies. No permit or licence having been registered and published as required by that act, permits and licences issued after that date must be treated as not having come into force. The situation does not appear to have caused much concern to the department, given that it took more than three years for Mr. Bernhardt to obtain a reply to his letter. In that undated letter received February 9, 2005, Alan Latourelle, chief executive officer of Parks Canada Agency, indicated that the Department of Justice acknowledges that the interpretation according to which permits and licences are indeed regulations as defined in the SIA is "possible," and states that a request has been made for an amendment to the Statutory Instruments Regulations to exempt these instruments from the obligation to register. If granted, the exemption from the obligation to register would carry with it an exemption from the examination and publication requirements of the Statutory Instruments Act. In reality, there is absolutely no question that these permits and licences are regulations as defined in the SIA since February 2001.

In subsequent correspondence, counsel wanted to know how Parks Canada meant to bring those permits and licences into force. Mr. Latourelle responded in July 2005 that Parks Canada is looking into the issue of permits and licences issued since February 19, 2001 that are "still in force."

The precise problem is that they are not in force because they were never registered as required by the Statutory Instruments Act. Persons and citizens have acted presumably on the basis of these permits and licences, so it would seem to counsel that the correct solution is for Parliament to adopt legislation deeming these permits and licences to have been properly dealt with under the Statutory Instruments Act. If members of the committee agree, counsel will impart that suggestion to the agency.

The Joint Chairman (Mr. Anders): Are there comments? Are members agreed?

Hon. Members: Agreed.

[Translation]

Mr. Lemay: I told Mr. Bernier to stay on them, so to speak.

[English]

The Joint Chairman (Mr. Anders): Mr. Bernier, duly noted.

C.R.C.c.954 — INDIAN ESTATES REGULATIONS

Mr. Bernier: In a letter dated August 17, 2005, the Minister of Indian Affairs and Northern Development argues that there is no need to validate orders previously made pursuant to section 14 of the Indian Estates Regulations. Section 14 was revoked after being determined ultra vires the Indian Act by the joint committee. The minister states that he does not wish to frustrate the joint committee and recognizes that previous commitments to validate those illegal orders were made. That commitment was made in the name of the government as a whole in the government's response to Report No. 65, which committee members have in their material. In its response to item 4 of that report, the government stated, "any solution to this issue ...must also validate past decisions made by Ministerial order under section 14."

The minister now wishes to renege on this formal undertaking given by the government. The reality is that over a number of years persons were unlawfully deprived of their rights on the basis of illegal orders issued under section 14. It is the formal redress of this situation that the minister characterizes as involving a minor housekeeping matter, with which counsel does not agree.

One understands that the Department of Justice might be reluctant to publicize the situation. In an attempt to diminish the significance of what occurred, the department places great reliance on the existence of the presumption of validity and the fact that no court has declared either section 14 of the Indian Estates Regulations or any order made pursuant to that section illegal. I regret to say that the department seems more concerned with sweeping a little embarrassing mess under the carpet than it is with addressing the consequences of past illegal actions by ministers of the Department of Indian Affairs.

The joint committee informed the department as early as 1994 that the section 14 orders were illegal because section 14 is ultra vires the Indian Act. Those orders continued to be issued until 1999, or so. Given the circumstances, I suggest that it is somewhat inappropriate for the minister and his legal advisers to take refuge behind a presumption of legality. According to the minister, there is no need for remedial legislation at this time insofar as there is no limitation because there is a period of limitation that would prevent any challenge to an order previously made that deprived a lawful heir of his inheritance or part of his inheritance. The minister expressed concern and stated that to introduce validating legislation at this time could impose "an impractical and unnecessary burden on Parliament." The concern is what it is but I would suggest that this is an issue for Parliament rather than for the minister or his legal advisers.

The minister puts forth the proposition that the absence of any legal challenge to any of the 3,000 or so orders previously made under section 14 must reflect "acceptance by heirs at law and First Nations of the rightness" of these ministerial orders. That argument is a little incredible. I put it to the joint committee that the silence of those whose property rights were adversely affected by those orders cannot and never can be equated to consent, as the minister seeks to suggest. This is all the more so when some of those so affected would have been minors.

In closing, I suggest that the joint committee insist that the commitment it received from the government be honoured. If members agree, the question remains whether this is best communicated to the minister or by means of a further report to the houses.

[Translation]

Mr. Lemay: I totally agree with Mr. Bernier's recommendations. I have read the documents. I expected him to take this position and I strongly support him. We must not wait, yet again, until this becomes public and a legal challenge is launched, because we would then be accused of laxness. We need to avoid that at all costs.

Ms. Wasylycia-Leis: I agree with Mr. Lemay and Mr. Bernier.

[English]

I find it absolutely incredible that in this letter from the minister received on September 30, he would say to "accept this letter as adequate demonstration that remedial legislation would serve no practical or legal purpose."

There is such arrogance about this letter that is unbelievable, and I recommend that we follow Mr. Bernier's advice.

Mr. Lee: I was hoping to take a bigger-picture look at this. I accept that the undertaking was given and that it has not been fulfilled. That can stand alone; and it does not seem as if the government is motivated to fulfil it at this time. I have no difficulty reporting our regret to the House — a report is in order.

In terms of the fix, I have the burden or the benefit of having viewed this file for almost 20 years. I am looking at the phraseology here that suggests that statutes of limitations may prevent any litigation from ensuing in relation to decisions made by the minister between 1982 and 1986. I think that is the time frame with which we are dealing. That is the time frame where we believe that Parliament should validate decisions made under the impugned regulations.

That period is getting to be so old; if that is the case, it is 20 to 23 years ago. After a while, it starts to look odd that we are trying to fix something legally that happened 20 to 23 years ago.

I am coming around to the view that rather than waiting forever for a fix — a fix that would require some degree of consultation with the Aboriginal community, and recognizing that kind of consultation always involves a suggestion that the House of Commons mind its own business — we should think in terms of a report. A report would allow us to record the failed undertaking — our view that technically in law these decisions should be corrected in law, put our case to Canadians, complete our work and put the government on notice that any downside associated with their failure either to fulfil the undertaking or do the fix rests with them. That would allow us to move on.

I have a 17-year window on this file and I do not see a quick, easy fix. The burden of that should lie with the government, not with us, but we can report it and state it clearly. That would allow us to close the file, unless there are other items that counsel thinks we should pursue.

Mr. Wappel: Unfortunately, Mr. Lee and I walked in at the tail end of your recommendation, Mr. Bernier, so I did not hear it. I want to ask a question. Is the third last paragraph of the letter legally accurate?

Mr. Bernier: I have not researched the point in detail. My instincts suggest that perhaps it is not entirely accurate. We have to remember that the rights that were affected were rights conferred by section 48 of the Indian Act. Therefore, the effect of the order of the minister changing the succession set by Parliament was, in fact, a derogation to the act of Parliament. I am not sure that a right conferred by an act of Parliament is subject to a limitation period. I think that an heir — for example, a child who had been unlawfully deprived of part of his or her inheritance as a result of an order recognizing a common-law spouse as a wife — contrary to the act, might well —

Mr. Wappel: Sorry, Mr. Bernier, I did not hear what you recommended but presumably if it is some sort of action — whatever that action is that you have recommended to us, and that Mr. Lemay has so forcefully agreed to — it would be incumbent upon us to be ready to answer this argument. They will argue that it is totally moot because it is impossible to bring any action.

Mr. Bernier: What I suggested was that the government simply comply with the undertaking it gave to the committee in its government response, which was to ask Parliament to validate these orders. Once a government accepts that it has acted without proper legal authority, it seems to me that is the proper thing to do. Whether or not —

Mr. Wappel: I am sorry to interrupt you, Mr. Bernier, but all that is a given. However, as Ms. Wasylycia-Leis points out, here we have a minister who gave an undertaking and will no longer comply with it. What is our remedy? Do we write back and say "please do," when he has already said he will not?

If we make a report to the House, what kind of report would it be — just reporting our dismay?

Mr. Lee: Consternation.

Mr. Wappel: So what if we report? It is not going to make the minister revoke these or make them legal. How do we compel the minister to do that, if there is any way this committee can compel him? If not, all we can do is make a report expressing our regret. Is not that so?

[Translation]

Mr. Lemay: I do not wish to put Mr. Bernier on the spot. We are the ones who have a political decision to make. We should make a recommendation to the House. Contrary to what the committee has requested, the minister is not following through on his commitment. The matter should be put before the House and it should be the one to decide. It will tell the Department of Indian and Northern Affairs to do its job!

There is bound to be a challenge at some point in time. Someone who feels his rights have been violated will react sooner or later. We have seen this happen with other files. When the day comes where someone launches a challenge, the government will have to provide an out of some kind. Yet, how hard can it be to validate 3,000 orders? One legislative provision is all it would take to resolve this matter. Otherwise, why are we even here? We must make a recommendation to the House.

[English]

Mr. Wappel: I just wanted to know what we are doing. If it is a report making a recommendation that the House act to compel the minister to abide by his predecessor's undertaking, good luck to us.

Senator Moore: What wording would you use, Mr. Bernier, in the report? I do not know whether the word "compel" would be appropriate.

Mr. Bernier: The committee can "urge" or the committee can "recommend," or the words "prompt," "beg" or "ask" could be used. That is what parliamentary committees do and the government decides what it will do. There are two elements to such a report. First is the issue of what Parliament — the House and the committee — think of ministers reneging on commitments given by the government as a whole because comprehensive government responses are given not by the minister but on behalf of the government.

Senator Moore: That is right.

Mr. Bernier: Is it acceptable to the House, once a commitment is given by the government, to have one minister renege, although one might assume that the minister was speaking with the consent of the government? In a way, the commitment has been given not only to this committee but also to the House of Commons, because that was where the comprehensive government's response was tabled. I suggest that the first element is a matter of the relationship between the executive and the House of Commons.

Senator Moore: Is that commitment report filed concurrently in the Senate?

Mr. Bernier: Yes, the report is tabled at the same time in the Senate but the comprehensive government response is not tabled at the same time. The report was made to both Houses.

The second element is the issue of validating those illegal orders, invalidating the consequences of those illegal orders, which was that an unknown number of persons were deprived in part or in whole of their property rights.

For good reason no one is questioning the intent behind section 14 because as enacted in the orders it was politically and socially correct. It was to acknowledge the status of common-law spouses in terms of inheritance. However, there is no question that the Parliament of Canada in its act had reserved the right to inherit to widows only and not to common-law spouses. If that were to be changed, they should have gone back to Parliament.

Senator Moore: Will the committee's report be issued next week? I suggest two weeks at the outside.

The Joint Chairman (Mr. Anders): Senator Moore, I ask that we proceed to Mr. Lemay.

Senator Moore: Yes.

[Translation]

Mr. Lemay: In chapter 4 of the report dealing with Indian estates, a very interesting observation is made on page 8 of the English version. I would like to read this excerpt to you.

This response amounts to little else but an assertion that given a sufficient policy justification, the Minister may properly disregard the law made by Parliament and continue to act in a manner that he knows or suspects to be unlawful until such time as he is told his actions are illegal by a court.

This is a strongly worded statement. It is surprising, to say the least, to see an elected Member of Parliament and a minister adopt a position like this one. Your committee staunchly condemns this position as running counter to the rule of law and negating constitutional government. What more is there to say?

[English]

Mr. Lee: The material read by Mr. Lemay has been reported to the House and filed. I do not recall whether it has been debated but this was done more than ten years ago. In my remarks and suggestions, I was looking for a way to regret the state of the art and find a way for us to close this file if it bears limitations and little to no practical implication. The joint committee has stated that it is a breach of the law, that an ultra vires action has taken place and that an undertaking remains unfulfilled. I suggest that the joint committee report those firmly to the House in a way that would allow us to close the file and place responsibility for any implications of the non-fulfilment of the undertaking or actions on the government. Simply, the joint committee should place on the record what occurred and that it was illegal, period.

There could be a way to force the government on the matter if Parliament remains in session. However, I do not see a need to construct a mechanism that would take on the government and force it to act, although one might construct something. The committee could order that things be brought before the committee. There is no point reaching into the bag of privileges, yet.

Ms. Wasylycia-Leis: I disagree vehemently with that suggestion because that would be akin to sweeping this wrongdoing under the carpet. Whether we go into an election is not the issue. Rather, the issue is that the joint committee has a responsibility to oversee and alert both Houses of Parliament to any wrongdoing or non-compliance by the government.

At times, repetition of the point is needed to let government know that people are watching. Perhaps the last time this was reported to Parliament it was not noticed. If the committee repeats it often enough and does not hide from its responsibilities, the matter will eventually be noted and Parliament will debate it. Through political embarrassment or pressure, perhaps the committee would be able to convince the minister and government to act. If the committee does not act on this, then that would be akin to condoning the behaviour and, no doubt, a repeat of this kind of behaviour would occur.

The Joint Chairman (Mr. Anders): I have gleaned talk of a report that, some members have suggested, would express regret; one that would include a recommendation or two, as Mr. Lemay put forward; or, as Ms. Wasylycia-Leis has talked about, one that would repeat previous messages. I wonder whether the committee wants officially or unofficially to allow Mr. Lemay and Ms. Wasylycia-Leis to demonstrate mightily in the House their regret in respect of these matters. The committee can appreciate that I am attempting to create a practical scenario with which to proceed.

Senator Moore: If this were not fixed, where would it end? Would an Aboriginal have to take legal action to have his or her rights? Would we force people into a legal process? Someone out there who realizes that their rights have not been maintained might be forced into a legal action against the government to have their estate rights upheld. What would be the consequences of the actions of this committee? To cause such a thing is not the purpose of the committee.

[Translation]

Mr. Lemay: I would like to draw a parallel, if I may. Yesterday evening on Radio Canada's Le Point, several Aboriginals were interviewed about the situation in Kitcisakik, a community located near my riding in La Vérendrye Park. I travel through the park just about every week.

On reading through the material this morning, one document in particular caught my attention. The attitude of the Department of Indian and Northern Affairs toward this whole matter is one of brazen paternalism. In the document, the department refers to the Supreme Court ruling in Miron v. Trudel on, among other things, common law spouses. The example used is that of a widow living with an Aboriginal, or Indian, because the act in question is the Indian Act. I fail to see any connection.

This paternalistic attitude on the part of the Department of Indian and Northern Affairs must be denounced. Moreover, our aboriginal affairs critic, Bernard Cléry, has decried this attitude. Can there be a more obvious example of this sort of paternalism?

I fully intend to bring this matter to Parliament's attention once again. The Bloc Québécois critic for aboriginal affairs will certainly be apprised of this situation. Discussions behind closed doors just do not cut it.

I will wait until this matter is brought to Parliament's attention. Regardless of whether that happens during this legislature or the next one, we must denounce this paternalistic attitude. After all, this is the 21st century and this type of behaviour cannot be tolerated.

[English]

The Joint Chairman (Mr. Anders): So far, I have heard people say they want to express regret and they want to report to the House. I have not heard any kind of different interventions in regard to this. Therefore, at some point, we have to either assign people to report to the House or let them go about their will on this.

[Translation]

Ms. Guay: My question is for Mr. Bernier. When was this matter last brought to the attention of the House?

Mr. Bernier: Report No. 65 was drafted on May 27, 1999. Most likely it was tabled in the House of Commons and Senate a few days later. The government subsequently responded to the report. I cannot tell you exactly when it tabled its response.

Ms. Guay: What authority does our committee have over this matter? We can bring the issue to the attention of the House of Commons again, as we did in the past with a fisheries bill. What steps can we take to heighten Parliament's awareness of this issue? Should we simply bring the matter up again, draft a report and table it to Parliament?

Mr. Bernier: It is a matter of drawing up a report and making recommendations, where warranted. I would also add that it might be easier to agree on drafting a report.

[English]

At this stage, rather than have members debate what should or should not be in, it might be easier to allow counsel to draft something. Then you will have something concrete to look at. They can disagree, add here or remove there.

The Joint Chairman (Mr. Anders): I think there is some form of agreement on that.

Hon. Members: Agreed.

The Joint Chairman (Mr. Anders): I think some colleagues will choose to comment on this in the House — the representatives of the various parties as they see fit.

Mr. Lee: So we are all focused on this, does counsel believe he would have a report available for next week or would it be a two-week time frame? We are not meeting next week, are we?

I do not have to say anything else on the record. Colleagues know where we are going here. Thank you for acknowledging that.

Mr. Bernier: It will be ready whenever the committee wishes.

Ms. Wasylycia-Leis: Will it be ready for tomorrow?

Mr. Bernier: Is there a meeting of the committee scheduled for tomorrow?

The Joint Chairman (Mr. Anders): I think we had some agreement on the previous point, so we will move on with that while the going is good.

SOR/78-213 — NATIONAL PARKS GENERAL REGULATIONS

SOR/82-949 — NATIONAL PARKS GENERAL REGULATIONS, AMENDMENT

(For text of documents, see Appendix B, p. 15B:1.)

Mr. Peter Bernhardt, Counsel to the Committee: Of the 22 points raised in connection with these two instruments, four remain outstanding. These are described in counsel's letter of March 31, 2003.

Of particular concern is section 33 of the regulations. The legal advisers to Parks Canada have agreed that this provision constitutes an unjustifiable restriction on freedom of expression and contravenes the Canadian Charter of Rights and Freedoms.

Amendments to address all the remaining concerns are to be included in the next series of amendments to the regulations. These amendments were expected to be prepublished in the spring of 2005. To date, however, prepublication has not taken place.

In view of this, perhaps the joint chairmen could write to the Minister of the Environment, pointing out the seriousness of the section 33 issue and seeking his cooperation in resolving the outstanding matters without further delay. As well, given that it has been accepted by everyone that section 33 is unconstitutional, an assurance could be asked that this provision will not be applied pending its amendment or revocation.

Hon. Members: Agreed.

PARKS CANADA MASTER LIST OF FEES (2003-2004)

(For text of document, see Appendix C, p. 15C:1.)

Mr. Bernhardt: As members may recall, this issue concerns licence charges for the sale of alcoholic beverages in a number of national parks. The charges are based on a percentage of the gross purchases for sale by the licensed businesses.

The committee has taken the view that these charges constitute a tax on the carrying on of the business. Therefore, they are ultra vires, as there is no provision in the Parks Canada Agency Act that authorizes the imposition of taxes. The reasoning on which this conclusion is based is summarized in a note prepared for members this morning.

Although not accepting that the charges in question are unlawful, the agency has characterized them as "not appropriate," and has undertaken to replace them with fees that can be calculated at the time the licence is issued. However, the agency has been unable to arrive at a proposal that is acceptable to the affected businesses.

When the file was last considered by the committee, members agreed that the joint chairmen should write to the minister, seeking his cooperation in resolving the issue. Prior to the letter being drafted and sent out, the Federal Court has rendered its judgment in 620 Connaught Ltd. v. Canada (Attorney General). In this decision, the court found that the charges for licences to sell alcoholic beverages in the parks were valid regulatory fees and do not constitute a tax.

The note suggests several grounds on which the reasoning of the court might be criticized; perhaps most significantly, the prospective aspect of the fees was not addressed. If the amount cannot be determined at the time the licence is issued, the charge in question may be said to constitute a tax on the activity carried out under the licence.

While the court twice noted that section 4 of the National Parks of Canada Businesses Regulations requires an application for a licence to be accompanied by the relevant fee, the court never dealt with how this requirement can be met when the amount of the fee is a percentage of sales conducted under the licence, to be paid on an ongoing basis.

Having said this, it is nevertheless the case that the decision represents a judicial determination expressly on the point, to the effect that the charges for licences to sell alcoholic beverages in national parks are valid, and do not constitute an unauthorized tax. At the same time, this decision is being appealed. Therefore, the question for the committee this morning is whether it still wishes to pursue the issue with the minister as it previously determined, or whether it would prefer to await the outcome of the appeal.

Mr. Lee: I am interested in this issue. As members are aware, the committee has already addressed the issue of Broadcasting Licence Fee Regulations Part II. Recently, I looked at the fees charged to airport authorities across the country, which similarly impose under leases as opposed to licences or permits, a percentage of the gross revenues at airports. In my opinion, this kind of fee comes awfully close to a tax. In this matter before the committee today, we face the same conceptual issue.

I do not care what the trial division of the Federal Court found. As parliamentarians, members of this committee are well within their jurisdiction to have their own view on what constitutes a tax. If members of the House of Commons or the Senate cannot have a view of what a tax is, why are we in business?

I take a relatively strict and narrow view of this. I realize that some of the principles involved are working their way through the courts. The Eurig Estate decision was helpful. I suggest that the committee take a strict approach to this matter. If the fee looks like a tax and smells like a tax, then the committee will treat it like a tax, despite the finding of the trial division of the Federal Court. Eventually, the committee will reach an understanding with the bureaucrats who levy these juggernaut revenue producers on our citizens. I suggest that the committee stick to the position that I am taking, with a little rewording, of course, and request further clarification. I do not want to relent until this is clarified.

Mr. Wappel: I thank counsel for the note, which is simple and to the point, and our question is summarized in the last sentence. I wonder whether the committee could do three things: First, for the reasons stated by Mr. Lee, pursue the issue with the minister. We know that the minister will say that there is no issue because it was decided by the trial division of the Federal Court. Second, wait for the appeal, which will wend its way and, sooner or later, be a decision of the Appellate Court. Then, depending on that decision, it might go to the Supreme Court seven years from now. We do not know who the committee members will be to review this file at that time. However, the committee could pursue it with the minister knowing that the minister will say that the department has been justified. Third, is it possible for the committee to contact the solicitors for the losing party and provide them with the views of the committee on this issue? In that way, the solicitors could choose to include that information in their appellate argument.

Mr. Bernhardt: Certainly, all of the committee's correspondence as well as the proceedings today could be provided.

Mr. Wappel: My point is to be proactive and bring it directly to their attention because who reads the proceedings of this committee if they have a busy law practice?

Mr. Bernhardt: It would not be a case of disclosing any kind of confidentiality.

Mr. Wappel: I recommend, therefore, that in addition to awaiting the appeal and pursuing the issue with the minister that we bring to the attention of appellant's counsel the views of this committee and the reasons therefore, so that they can decide what they want to do with it.

The Joint Chairman (Mr. Anders): Mr. Bernier thought that could be arranged.

Mr. Bernhardt: I understand the letter to the minister would reiterate the committee's position, noting that we have the judgment as being appealed and, notwithstanding that, this continues to be the position of the committee.

Mr. Wappel: The committee believes it will be vindicated on appeal.

The Joint Chairman (Mr. Anders): Are there additional comments?

Mr. Lee: I agree with Mr. Wappel's approach, and the memo of counsel is helpful, with one proviso: I thought counsel was deferential to the courts in this matter and, as an elected member of Parliament, I am much less inclined to be so. If a new memo were drafted, perhaps counsel could highlight the court case and the House of Commons perspective so that the role of the committee is clear. That would improve it but the memo as it stands is good.

Mr. Bernier: I can only plead on behalf of my colleague that perhaps the writing style was influenced by the fact that we have been long familiar with Ms. Snyder, who had a previous life as a general counsel and designated statutory instruments officer for an agency.

The Joint Chairman (Mr. Anders): Counsel has direction on this. Are members agreed?

Hon. Members: Agreed.

SOR/2003-310 — PRAIRIE DOG AND CERTAIN OTHER RODENTS IMPORTATION PROHIBITION REGULATIONS

SOR/2004-240 — REGULATIONS AMENDING THE PRAIRIE DOG AND CERTAIN OTHER RODENTS IMPORTATION PROHIBITION REGULATIONS

(For text of document, see Appendix D, p. 15D:1.)

Mr. Bernhardt: Three points were raised in connection with these regulations. The first point concerns section 14, which provides that the prohibition on the importation of prairie dogs and certain other rodents does not apply to animals imported for scientific research, zoological collections or educational purposes. The Health of Animals Act permits the minister Agriculture and Agri-Food Canada to make regulations prohibiting the importation of animals. However, it is also a well-established principle that the power to prohibit cannot be used to regulate. In other words, a power to prohibit something is narrow and cannot be used to put in place a regulatory regime, whereby prohibited animals may enter Canada if certain conditions are met.

This point was accepted by the Department of Agriculture in 1995 in connection with similar provisions. At that time it was agreed that if such provisions, that is to say these conditional prohibitions, were required in the future, they would be enacted by the Governor in Council rather than by the minister under section 64(1)(a) of the act. Section 64(1)(a) permits the Governor in Council to make regulations regulating the importation of animals. In its August 25 reply, the Canadian Food Inspection Agency seeks to adopt a different tack, arguing that the words, "imported for scientific research, zoological collections or educational purposes" simply define the group of animals prohibited by excluding those imported for these purposes. Yet as the reply admits, there is no way to distinguish an animal imported for one purpose from an animal imported for another purpose because the animal is the same species. It is not that certain types of animals are being prohibited but rather it is the importation of these animals that is being regulated by restricting importation to certain defined purposes. This point needs to be pursued with the agency.

The reply, as it relates to the second point, is considered to be unsatisfactory. This concerns the fact that while the Health of Animals Act confers the regulation-making power on the Minister of Agriculture and Agri-Food, the amendments made by SOR/2004-240 were made by that minister and the Minister of Public Safety and Emergency Preparedness. The only authority given for this fact is that the regulations concern border activities, which are the responsibility of the Minister of Public Safety and Emergency Preparedness.

Nevertheless, the fact remains that Parliament has conferred this regulation-making power on a particular minister. It has not been conferred on anyone else, and it is not for that minister to decide of his own accord to share the power with others. That issue needs to be pursued as well.

The final point concerns references in the regulatory impact analysis statement to applications for exemptions and exemption permits. Neither of these things is mentioned in the regulations themselves.

The agency's reply seems to indicate that there was simply a failure to revise the Regulatory Impact Analysis Statement, RIAS, as the draft regulations were evolving and going through the development process. Even though the RIAS is not part of the regulations, it might be wise to seek a clearer statement that, in fact, this was what happened and that there are no applications for permits, or permits being issued here on some basis, when there is no mention of them at all in the regulations. In summary, each of these three points needs to be followed up with the agency.

Hon. Members: Agreed.

Ms. Wasylycia-Leis: I would like to know about the overpopulation of prairie dogs. Why is anyone importing them?

Mr. Bernhardt: Apparently, it is to prevent the introduction into Canada of the monkey pox virus, which is something like a chicken pox virus that passes on to humans. Despite its name, the monkey pox virus comes through various rodents.

Ms. Wasylycia-Leis: Why would anyone import prairie dogs if we have so many?

Mr. Bernhardt: I think some people keep some of these species as pets. There is something called the African giant pouched rat. I am not sure what the African giant pouched rat is, but apparently some people keep them as pets.

Mr. Lee: I have a comment or a question to counsel. The approach of the department or departments here is to prohibit a class and then exempt a portion of the class. Could they not have taken away the first regulation, the prohibition one, and altered it to say that all animals of this class are prohibited except for a subclass within that class — in other words, except for the prairie dogs coming in for university research? In that way, the first regulation is, in fact, a prohibition of all prairie dogs except those that are tagged, certified or whatever as coming in for research. Would that not be an approach that would at least show some legal compliance here?

Mr. Bernhardt: I think that would run afoul of the same objection, which is that you are putting in a regulatory regime. The out they have is that the Governor in Council has the power to do that. When Parliament set up the statute, it put in a mechanism whereby, in an acute, unusual or crisis situation, the minister can quickly and simply prohibit. If you put in place a more complicated regime, then it is up to the Governor in Council to do that under his or her regulations.

Mr. Lee: With respect, they are prohibiting. They are prohibiting a specific group and easily identified class in putting in a proviso that hopefully would clearly identify a subclass. All they are doing is prohibiting.

Mr. Bernhardt: The question then becomes, is a prairie dog with a tag a different type of animal than a prairie dog without a tag, or are you putting a condition on importing a prairie dog, which is that you put a tag on it?

Mr. Lee: The department will say it is different; a prairie dog with a tag is not prohibited but all the others are.

Secondly, you have referred to the fact that a second minister or ministry has joined in making the order. That might be moot, redundant. I suppose you want to avoid creeping pretension at regulatory power on the part of the minister for the Canada Services Border Agency, CBSA.

Mr. Bernhardt: I do not think it was suggested that in this case it would affect the validity. You might have a different situation if next time down the road we simply displace the Minister of Agriculture completely and have a different minister do it on their own.

[Translation]

SOR/95-405 — RESPONSE ORGANIZATIONS AND OIL HANDLING FACILITIES REGULATIONS

Mr. Bernier: Committee counsel wrote to the department in question to verify that the draft amendments will be included in phase 2 of the overall updating process launched further to the passage of the new Shipping Act. The department responded that the draft regulations in question were included in phase 1 of the update initiative and that matters were progressing as expected, with the draft regulations expected to be pre-published in the spring of 2006.

[English]

Counsel will monitor in the usual way and will report to the committee.