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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 7 - Evidence of December 7, 2006

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OTTAWA, Thursday, December 7, 2006

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:32 a.m. for the review of statutory instruments.

Senator J. Trevor Eyton and Mr. Paul Szabo, M.P. (Joint Chairmen) in the chair.

[English]

The Joint Chairman (Mr. Szabo): Good morning and welcome to the meeting of the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations. We are pleased to have witnesses from Indian and Northern Affairs Canada, Ms. Mary Quinn, Mr. Steven Joudry, Mr. Glenn Stephens and Mr. Allan Burnside, to provide evidence on the first agenda item.

C.R.C. C. 1238 — NORTHWEST TERRITORIES REINDEER REGULATIONS

(For text of document, see Appendix A, p. 7A:1.)

Mary Quinn, Acting Assistant Deputy Minister, Northern Affairs, Indian and Northern Affairs Canada: Joint chairs and members, I appreciate the opportunity for Indian and Northern Affairs officials to be here today.

[Translation]

The minister's schedule does not permit him to attend this session, however, he has authorized me to speak on behalf of the department regarding the amendments to the Northwest Territories Reindeer Regulations. I am going to update the committee on the issues involved, our plan to move forward and how we will keep the committee informed.

[English]

The minister and the department appreciate this committee's continued attention to the matter and thank members for their patience. The amendment process has proven to be a much more complex and lengthy exercise than originally anticipated, but I would like to stress that it has not affected the department's ability to administer the regulations, insofar as the department continues to fulfill its operational responsibilities with respect to the herd. We also realize that Indian and Northern Affairs Canada has not kept this committee apprised of key developments in a routine fashion, and we will be correcting this lack of timely communication.

I am pleased to report that we are developing and implementing a sequenced plan to ensure that the reindeer regulations are amended as this committee has requested. Furthermore, committee members will be kept informed of progress on this issue on a regular basis.

To understand the current challenges associated with the reindeer regulations, we must first examine the issues that affected the amendment process some two years ago. At that time, the preparation of an Order in Council required by the amended Northwest Territories Reindeer Regulations to delineate the reindeer reserve revealed discrepancies in the descriptions of private lands outlined in the Inuvialuit and Gwich'in land claim agreements. Some of these discrepancies stem from inconsistencies between the French and English versions of these documents, which feature different descriptions of the boundaries of certain affected parcels of land. As a result of these errors, we could not proceed with the Order in Council and the amendment process came to a halt. INAC officials undertook a preliminary review of the Inuvialuit Final Agreement to identify some of the discrepancies. This work now represents the first crucial step in a sequenced, three-phased process to amend the reindeer regulations.

[Translation]

For example, there are a range of discrepancies; some are relatively simple and technical in nature, such as inconsistency in map numbers, while others — particularly those that relate to boundary latitudes and longitudes — appear to be more significant. For example, in the Gwich'in land claims agreement there is a difference of 6 degrees longitude between the English and French versions.

[English]

To clarify the scope of these discrepancies, we have enlisted the support of the Surveyor General of Canada Lands. Staff in the surveyor's office have begun to review the boundary descriptions in both agreements, comparing the English and French versions, and will then advise us of the corrective measures that need to be taken. It is quite likely that resolving issues related to the boundary descriptions might require further negotiation with the affected landowners. INAC officials have already been in contact with the Gwich'in and Inuvialuit representatives on this matter. In the final step of the first phase, we will develop a collaborative plan to resolve the discrepancies and complete the drafting of the new amendments to the reindeer regulations.

The second of the three phases involves completing consultations with all stakeholders and ensuring that the draft amendments to the reindeer regulations take into account the recommendations of this committee, officials in the Department of Justice, the current regulatory regime of the Mackenzie Valley and Inuvialuit settlement regions and the views of the Inuvialuit and Gwich'in, along with owners of relevant lands and herds.

Once a draft Order-in-Council incorporates accurate descriptions of the reserve lands, the third and final phase will begin. During this phase, the regulations will be subject to the normal approval processes involving the Department of Justice, the Privy Council Office and Treasury Board Secretariat, after which they will be published in the Canada Gazette.

At this preliminary stage, it is difficult to accurately predict the length of time that it will take to complete the amendments. I want to assure the committee that INAC officials will continue to vigorously pursue this process.

Furthermore, to ensure the committee is kept apprised of developments, INAC officials are committed to reporting back to the committee in three months on the work of the department with respect to the boundary descriptions and, thereafter, on a regular basis on the progress that has been made.

[Translation]

I will do my best to answer any questions committee members may have.

[English]

The Joint Chairman (Mr. Szabo): The regulations were first considered by the joint committee in 1983. How should legislators and others in government propose to amend our processes so that 23 years of sending letters back and forth and losing the continuity will not disrupt the effectiveness of the productivity of the work?

Ms. Quinn: That is an excellent question. Various efforts have been made over the years to amend and improve regulatory processes, some including how pre-consultation is handled. The way in which this committee functions certainly serves an important role in bringing shortcomings to the attention of the department. We certainly are aware that 23 years is not what anybody envisaged in terms of amending regulations. That kind of time frame is difficult to explain and for people to understand and accept.

The processes that have been going on during that time have involved working with other departments, looking at regulatory frameworks to see whether these regulations fit best there. I would certainly hope this is an anomaly in how the government regulates and approves amendments.

The lessons we have learned are that, while we made some progress along the way, even that progress between 1993 and 2000, when we were going down a certain avenue, did not produce the results we wanted. While 23 years is unacceptable and is a cause for concern, the file has the attention of the minister, the deputies and the senior officials in the department to move forward.

Mr. Epp: I have some serious questions. In this modern age, and with the technology we have on surveying, to find the coordinates of a place nowadays, you set up your little machine, wait a few seconds, and there it is, very accurately.

There are discrepancies between the English and French versions. I am sorry, but I do not understand how it takes 23 years to make a change in printed materials, just to coordinate the French and English versions. I cannot see how this can be that difficult.

In your written report, you have given us all these things, then at the end you say you cannot predict how long it will take from now on. I would think maybe next week would be fine, from my perception of what the problem is. I do not understand why this long delay has taken place and why it cannot now be dealt with very promptly.

Ms. Quinn: In talking about the 23 years, perhaps I did not explain properly when these boundary discrepancies were realized. Even then, they were some time ago, in 2002; but the 23 years were not all focused on the boundary issue. We did have other problems and issues along the way.

In terms of the boundary issues, as you say, there is modern technology. We need to define the boundary of the reindeer reserve, but the area involved also involves the territory of the Gwich'in and the Inuvialuit in the Northwest Territories. It is in those land claim agreements where we found discrepancies between the French and English versions.

When we heard about them, we did think it cannot be very complicated to correct the French and English. However, some of these discrepancies are very technical. It is not a matter, for example, where the French says 26 and the English says 62. There are more substantive issues. In one instance, there is a paragraph missing in the description. In another instance that we found, there is not only one degree of difference in the description between the French and English, but six degrees, which could push us right out of the Northwest Territories.

Mr. Epp: If I may interrupt, if there are discrepancies between the French and English, the first task is to find out what are the accurate numbers and the second task is to get into your word processor and fix them both up. It boggles my mind why there should be so much time required for this and why you cannot give us a more definitive answer on how long it will take.

Ms. Quinn: I do not want to predict — what will be will be. We want to be responsible and we want to be accountable. We do not want to say three months and not be able to deliver, especially when the citizens we work for have waited 23 years. We want to be realistic. Once we get the discrepancies identified, with the help of the Surveyor General's office, we think it will take four months to do the pre-consultation phase and eight months to wrap up the regulations.

I would love to have it done tomorrow, but we have to consult with the Surveyor General's office. Many of us at the table thought, when we first found out about the English and French discrepancies, that it would be easy to fix, but we do need advice on it. Some of the things are quite technical and you can find your way to resolving them. Others are more complicated and we need the Surveyor General's advice. We are not passing the buck. We genuinely need their help so we can go back to the Inuvialuit and the Gwich'in if some of these matters are serious enough that there has been a complete omission. We cannot assume that the English is right and the French was not translated correctly. We are not at that point yet.

Mr. Epp: Is it a proper assumption to say the reason this has not been completed is because it has been sitting on a shelf somewhere and no one has been working on it? Or is it accurate to say that people in your department have been working on it and just cannot bring it to a conclusion? Which scenario do we have here?

Ms. Quinn: I would say the latter and a little bit of the former, in the sense that at some points in time the effort was not sustained.

I have read chronologies of what has been happening with these regulations. I know that between 1993 and 2000, there was sustained effort on that. There were roadblocks encountered and there was consultation. There are regulatory boards in the territories that operate differently than in the south. I have seen correspondence back and forth. When this boundary issue was discovered in 2002, I believe other priorities in the department took precedence.

We have paid attention to this and we want to learn from the lessons of the past. The one thing we do not want to do is to stop the momentum that the exercise has now. We do want to be responsible and bring these amendments to their conclusion.

Mr. Lee: This file has been on our inventory now for almost a quarter century. It was probably marked on our agenda 15 or 20 years ago as making progress.

We have disallowed a portion of these regulations — the most egregious section, «offending the law.» It was, we believed, ultra vires. Did the department re-enact an equivalent of that disallowed section after it was disallowed or did you just leave the gap — or do you know? It is okay if you do not know.

Ms. Quinn: I do know it was tabled in the House of Commons. My understanding is that it is part of our package. We did not do it as a stand-alone amendment. Those sections are being deleted as part of the amendments we would be putting forward.

Mr. Lee: That, of course, remains an option for us here. We could bundle everything up and do another House disallowance and then you would end up with an even bigger gap in the regulations, which at some point, 23 years from now, you would get around to fixing — or as soon as you can.

Could you indicate to me, because I am slightly divided as one member here on whether we simply accept this — it has been 23 years and another three or four years will not matter — or 23 years is so long that it is over, we do not care anymore, and we will simply do what we have to do as legislators.

Could you indicate whether there would be a benchmark we could observe from here that would clearly show us the progress you have tried to articulate here? The benchmark I am looking for is not the end game. It is a benchmark along the way, so we could see it and know the matter was clearly headed to a reasonably prompt conclusion. Is there a benchmark out there that you could refer us to?

Ms. Quinn: Our first benchmark would be understanding the scope and breadth of these discrepancies in the boundaries of the private lands in the land claim agreement. We would hope to have that and know how to address it. I am hoping to have that done in three months, in terms of hearing from the Surveyor General's office. We want to write to the committee, and if the committee wishes us to appear in three months, we will certainly do that, because that is the first issue that needs to be resolved in terms of boundaries.

Depending on what is said there, our next benchmark, we think, would be four months to do the pre-consultation phase. Then our next benchmark, in terms of finalizing the drafting and doing prepublication, the two phases of publication and promulgating the regulations, would be eight months.

Mr. Lee: If you include pre-consultations and the others, it sounds close to three years. You may not think it is, but I do. I shall let colleagues ruminate on that.

Mr. Dewar: I have a question in terms of your position. I note that you are the acting deputy minister. Can you give us an idea of how many deputy ministers have served during the length of this file? Would you know that?

Ms. Quinn: I can get you that information. I will not speculate on it, but it would be a few. I am the Acting Assistant Deputy Minister for Northern Affairs. However, certainly in that amount of time, there would have been a fair number of deputies.

Mr. Dewar: You have touched on other issues outside of this — that there are land claim agreements that are affecting this. Are there other issues that are touching this file?

Ms. Quinn: That is the key issue. It is a new challenge that has come to us. The amendments themselves have been drafted for some time. The amendments recognize that the Crown is no longer the owner of the herd. The amendments are updating language in references to Indian and Eskimo. The amendments deal with the issue that the standing committee itself dealt with. They bring a lot more clarity to the conditions for licences and permits — for example, what needs to be included in an application, how long a licence can be for, when it can be withdrawn or denied by the minister.

With respect to the amendments, we have made considerable progress on that front in drafting them. However, the issue we now have to deal with is the boundary issue. What we did before 2002, frankly, was to explore a whole other route. Instead of dealing with these regulations, we worked with other departments to see whether there was a better body of regulations or an alternative legislative framework into which regulating this herd would fit. In hindsight, unfortunately, we spent a fair amount of time with other departments in doing that — including engaging stakeholders. In the end, that was a conservation route, not a route we ended up being successful with. We are back to our own business on these regulations.

Mr. Dewar: In terms of new development, is oil and gas development an issue? Since the regulations were written, have recent projected developments in oil and gas become an issue on this file?

Ms. Quinn: Certainly, the regulatory framework, in general, in the North and in the Northwest Territories, as it pertains to oil and gas and other opportunities, is there. It is important that the regulatory framework is sound — and that there will not be any ambiguities that people will have to deal with, anything that would come as a surprise. The regulatory framework is important, thus.

Mr. Dewar: With respect to the data gathered, in terms of the survey itself, do you know what language it was completed in? What was the language of origin in terms of the data gathering? Was it in English or French?

Ms. Quinn: I would be almost certain it was in English. We could confirm that for you.

Mr. Dewar: It may help to confirm, just in terms of sequencing. It is not the Tower of Babel, but there is a concern about sequencing.

Ms. Quinn: I will confirm that and the number of deputies.

Mr. Wappel: My first question pertains to page 2 of your written presentation, where you say:

We also realize that Indian and Northern Affairs Canada has not kept this Committee apprised of key developments, and we will be correcting this lack of timely communication.

That is it, folks, as far as that is concerned in your opening remarks, as far as I can see.

I should like to ask you why the department did not keep the committee apprised, number one, and what actions you are taking to correct this lack of timely communication.

Ms. Quinn: If I may start with the second question, we do intend to update the committee in February in terms of what we have learned from the office of the Surveyor General of Canada Lands and whether we have taken steps to address the boundary issues. We do intend to update the committee at any time we have key developments, on a three- month basis, so that we do not allow this lag and leave it up to the committee to come to us. We want to be proactive in keeping the committee updated and in demonstrating that we are making progress.

In terms of why the committee was not updated in the past 23 years on a regular basis, I have looked at the chronology and there were a few exchanges of correspondence, but you could assume the committee might have been updated on an annual basis but that did not happen.

Mr. Wappel: My question is this: Do you know why?

Ms. Quinn: I do not know. I can speculate that perhaps we were in a reactive and not a proactive mode — in other words, that we responded to the committee when the committee wrote but that we did not take the initiative. I cannot be precise on that.

Mr. Wappel: How can you correct a problem if you have not identified what the problem is, how it became a problem and why it became systemic? It is one thing to promise this committee that you will update us on this particular issue every 3 months — so what, after 23 years. It is another thing to say that you will be correcting this lack of timely communication, unless you only mean in respect of this committee. I have no idea what other correspondence from other committees, other people or other interested parties languished in the department for years — perhaps none. Somehow I get the feeling that it is the opposite.

Has the reason, or reasons, the communication was so poor with this committee been determined? That is my question.

Ms. Quinn: As I said, the department was probably reactive and responded to the committee when the committee made inquiries.

Mr. Wappel: Is there no one in charge of dealing with the committee at the department?

Ms. Quinn: Certainly, cabinet affairs people keep active liaison with the various committees. When we do receive correspondence from the committees, they are very active in ensuring they are responded to.

I take your point that it is hard to correct a problem when you do not know the source of a problem. What I can read is that there were probably three or four exchanges of correspondence with the committee in over a 23-year period. I would say that we owed the committee more exchanges of correspondence, and certainly not correspondence just to say that we are remembering to write to you, but correspondence that has substance to it — for example, "These are steps we took in the last year; four of these steps were successful and one was not.''

This is what we want to correct. Once we hear from the Surveyor General's office, we want to provide the committee with a work plan that outlines exactly what we plan to do on a month-by-month basis.

Mr. Wappel: From here on in, to whom does this committee look, in your department, if we want to follow up on this file? Can you give us a specific name?

Ms. Quinn: You can continue to look to the Assistant Deputy Minister for Northern Affairs, or preferably to the deputy minister, if you wish.

Mr. Wappel: It is not what I wish. What are you recommending?

Ms. Quinn: I would recommend that you keep in touch with the deputy minister.

Mr. Wappel: From time to time, whoever that may be.

Ms. Quinn: Deputy Minister Wernick has instructed us to treat this file actively and responsibly, and we fully intend to do that.

Mr. Wappel: There are six specific concerns of the joint committee, one of which was dealt with by way of a disallowance report, as we have heard. For example, with respect to section 5, we recommended that the provisions should be redrafted to limit the discretion of the minister in relation to licence conditions and cancellation or suspension of licences. What has that got to do with surveying?

Ms. Quinn: We have amendments dealing with issues raised by the joint committee. They are drafted and will need further consultation.

Mr. Wappel: How long have they been drafted?

Ms. Quinn: I would ask Mr. Stephens to respond.

Glen Stephens, Senior Analyst, Natural Resources and Environment, Indian and Northern Affairs Canada: We received the most recent copy from the drafters in February 2004.

Mr. Wappel: I do not understand what you mean when you say that you need more consultation. February 2004 — it is going on three years.

Ms. Quinn: If I may, there is the issue of the amendments, and the current issue of the boundary of the reserve, which will affect the boundary of private lands in the Gwich'in and Inuvialuit areas. We need an Order-in-Council to accompany the regulations.

Mr. Wappel: Why?

Ms. Quinn: So that the boundary of the reindeer reserve land can be defined.

Mr. Wappel: What difference does it make as to whether the minister's discretion is limited or that the provisions should specify some criteria for governing the issue of licences? What has criteria for the governing of issuing of licences got to do with boundaries?

Ms. Quinn: It comes as a package.

Mr. Wappel: Perhaps that is the problem. INAC has been trying for 23 years to give us a package instead of individual gifts. Why could the department not have dealt simply with these amendments in 2004, at least partially in some way, and with the rest of them as they arise? Had that been done, the department would not have a 23-year record of failure in this regard, having accomplished something and the joint committee would not have been forced to report to the House and have the House declare portions of these regulations ultra vires. There is no reason to think that everything has to be contained in one package, unless you can tell me why that is so.

Ms. Quinn: Certainly, we are willing to look at whether the regulations can be divided. It is my understanding that defining the reindeer reserve — where the reindeer are — and where they graze is fundamental to managing the herd. Having the specific reserve boundaries identified is a fundamental piece of information to the management and regulation of the reindeer herd.

Mr. Wappel: With my apologies, I simply do not understand that reasoning. Are you saying that because there is a problem with the surveys the minister has no authority over the reindeer?

Ms. Quinn: No.

Mr. Wappel: Of course, the minister continues to exercise the appropriate authority to look after the reindeer herd. Yes, the department might have a mistake of a degree of longitude here and there; yes, mistakes might be made because of a survey done who knows when and in what language; and yes, there might be First Nations agreements that have to be dealt with. However, that does not prevent INAC from bringing in regulations to limit the discretion of the minister to provide for some criteria for the governing of licences and to provide for circumstances in which the minister will authorize off-reserve grazing. The circumstances in which the minister will authorize off-reserve grazing have nothing to do with the territory of the reserve. Rather, it has to do with the circumstances under which the minister will authorize the off-reserve grazing of the reindeer herd.

Therefore, I suggest that one of the major problems is that the department absolutely insisted for 23 years that everything has to be done at one time or nothing can be done. If there is one thing this committee has seen in the years that I have been a member of it is that anything that has anything to do with First Nations takes a quarter of a century to get done because it involves many sensitive negotiations. However, it is not necessary to negotiate with the First Nations to determine what the discretion of the minister is. That is an issue for Parliament and that is an issue under the statutory delegation for the regulations and for the minister.

I urge you, Ms. Quinn, in the strongest possible terms not to think in a linear way, in a two-dimensional way, such that everything has to be fixed all at once or we wait another 23 years until we figure out whether the discrepancy was one degree of latitude or six. You fix what you can fix and you work on what you can work on. I urge that in the strongest possible terms. I hope that someone with a computer will bring forward a reminder for the deputy minister every three months to keep this committee posted.

Ms. Quinn: I certainly appreciate your comments in terms of not thinking in a box and not doing a package. We will explore that suggestion. From the records, I know that the legal advice has been such that identifying the boundary of the reserve is essential to making the amendments, but the department is quite prepared to look at whether there are more creative ways to deal with this. In terms of updating the committee, INAC has every intention of doing that.

Senator Moore: When was the English/French discrepancy discovered?

Ms. Quinn: It was discovered in 2004.

Senator Moore: Was it rewritten immediately?

Ms. Quinn: INAC had the amendments to the regulations in 2004; in drafting the Order-in-Council, that was when we were advised of the discrepancies in the boundaries. At that point in the process, the department stopped dealing as proactively with the amendments as it could have done. I can only attribute that somewhat speculatively to other priorities that the department was dealing with in terms of land claims and other such initiatives.

Senator Moore: When the regulations were being developed and drafted, someone discovered the discrepancy. Would not the usual process be to go back and fix that discrepancy to finish the job? If not, what is the usual approach in such a case? I do not understand how something like that could simply be set aside. If I were doing a project, I would want to finish it. Why was that not done?

Ms. Quinn: I can say only that there are two tracks: The track on the drafting of the amendments definitely realized progress. The track on resolving the discrepancies in the English and French versions of the boundary issues was not dealt with as proactively as it should have been. However, it now has the attention of the minister and the deputy minister.

Senator Moore: My next question touches on one of Mr. Wappel's questions. Is there one person in charge of this file?

Ms. Quinn: Yes.

Senator Moore: Who is that?

Ms. Quinn: I am in charge of the file.

Senator Moore: How long have you had that file, Ms. Quinn?

Ms. Quinn: I have been in my current position for three months.

Senator Moore: How long has Mr. Wernick been deputy minister?

Ms. Quinn: I believe he was appointed in late spring of 2006.

Senator Moore: When the boundary issue was discovered — what has happened in the intervening years?

Ms. Quinn: In dealing with the land claims issues and Aboriginal organizations, the department did not deal with the boundary issue as proactively as it should have.

Senator Moore: I keep hearing the word «proactively.» Given the unbelievable length of time that this file has been open, and there might be some reasons, what will INAC do with this now? Will this matter be dealt with and resolved?

Ms. Quinn: You bet.

Senator Moore: This is no fun for you and no fun for us. You said you do not want to give us a timeline and then for us to be disappointed. I would rather you give us a timeline and come back to the committee and say that you need another two weeks on something.

What I would like to see here is a work plan. I would like to see on paper what we are doing. This is the project, here is what we will do each month, here is how we will achieve it and this is the timeline.

I do not want to hear about three or four more years. I do not know why this cannot be wrapped up in a year or less than that. Why not set some goals and go get it?

Ms. Quinn: We definitely intend to give you a work plan. We have written to the Surveyor General's office and will be meeting with them in tackling that first issue of the boundaries. We have found about 20 discrepancies so far and we will meet with them to see which ones are technical and can be dealt with quickly, and whether there are some that are more difficult to deal with. At this point, we are not quite sure.

Senator Moore: When you find discrepancies as to survey work, do you have surveyors within your group looking at that? How do you know if the Surveyor General is spot on in his work?

Ms. Quinn: It is the responsibility of the Surveyor General of Canada Lands and we have written to their office. We have communicated with them by phone and we do intend to meet with them to get their advice.

Senator Moore: I heard that, but how do you identify discrepancies? If he is the main surveyor and he says that is where the line is, what tells you that you are off by a degree? Who says that?

Ms. Quinn: We are not the experts in that. However, reading the text between the English and French, we have found discrepancies in language. We have found sometimes where a longitude is identified in one language and not in the other.

Senator Moore: Was it a drafting issue, Ms. Quinn, as opposed to a survey, on-the-ground issue?

Ms. Quinn: I do not know. We need the Surveyor General's advice on it.

Senator Moore: Should we have the Surveyor General come before us? How do we get this thing moving?

Ms. Quinn: That is the prerogative of the committee, but we have only written to the Surveyor General very recently.

Senator Moore: When?

Ms. Quinn: Last week, and we have been in touch with them by phone before that. We are not trying to say the file is the responsibility of the Surveyor General. We want to get his advice.

We can do the work plan in terms of the pre-consultation period, recognizing that a lot of consultation has been done and the amendments have been drafted. We can identify the period to go through Part I and II in the Canada Gazette. We need to fill in the upfront piece, understanding that perhaps we have three kinds of discrepancies. Some can be dealt with in a month; some will take two months — we just do not know yet.

We are missing the very first part of the work plan. That is why we would like to communicate and/or come back, as the committee wishes, in February to say this is what we have learned from the Surveyor General. We will be submitting the work plan as soon as we have that front piece. It will have the benchmarks and we will be able to measure progress along the way.

Senator Moore: When will you submit this written work plan with the timelines on it?

Ms. Quinn: We can submit a work plan next week, but it would be incomplete in the sense that it will not have that first part, for which we need the advice of the Surveyor General.

Senator Moore: Give us what you have. If we keep waiting for the perfect thing here, we will never get it. Let us start putting this thing together and then we can go back and forth and help you.

I do not think the approach has been correct. I understand it may be complicated, but we have to start ticking things off as we move forward.

The Joint Chairman (Senator Eyton): We seem to be covering the same territory from different angles. I wonder if we can keep our questions shorter. We will finish the questions and then the committee must come to some kind of conclusion.

[Translation]

Mr. Bouchard: I can understand that it must not be easy for you to present a file that you took over only three months ago.

You also acknowledged that efforts were not sustained over a long enough period of time, but that since 2002, you seem to have become "proactive,'' in your own words. I have a few questions for you, along the same lines as the ones put to you earlier by another member.

Do you have the resources you need to bring this matter to a resolution? I understood that you have a plan in place. By that do you mean that you have drawn up a timetable and assigned responsibilities to people? Has someone been assigned responsibility for this file? I thought I understood that you might be that person. Could you clarify that for me? Whether you or someone else is responsible, can this matter be seen through to its conclusion? As we know, in the public service, transfers and changes occur and people remain in a position for only a certain length of time. Are you confident that this person can achieve some results?

[English]

Ms. Quinn: In terms of resources in the Northern Affairs Branch, where I am the Acting Assistant Deputy Minister, we have the resources to deal with this issue. We have drafted the amendments; we have engaged stakeholders and such.

In the Department of Indian and Northern Affairs Canada, we are dealing with our colleagues in another sector of the department, which is the claims sector and my colleague there. For example, if we have to go back to the Gwich'in or the Inuvialuit on the land claim agreement itself, for some reason, it would be that part of the department that does that.

Certainly, the deputy and the minister are looking to both of us to ensure that whatever needs to happen happens. You could say the accountability rests with me, because we are the Northern Affairs program and we are responsible for the regulations, but we will be working closely with our colleagues in the claims sector. In fact, they are the people who have written to the Surveyor General of Canada Lands to get the advice on the boundary issue. We are in lockstep on the file.

There are other agencies — in this sense, the Surveyor General's office. However, we have only engaged the Surveyor General very recently on the file, after recent discussions with the deputy in terms of what is needed to move things forward. We know who is responsible for the file and we will work together in bringing a close to it.

Mr. Stanton: As I listen to the discussion, I have a couple of questions. First, in a practical sense, since this regulation clearly was in force pre-1983 because it was the subject of proposed amendments in 1983, what is actually occurring with respect to the herd without the force of these proposed amendments? In terms of managing the herd in this area, is there anything occurring there that would help propel the need or urgency around getting these amendments done?

Second, if you have time, could you tell us what kind of jurisdictional complexities come into play here with respect to the territorial government, the First Nations or Inuvialuit issues that make this case more complex to deal with?

Ms. Quinn: In terms of the herd, our understanding is that the herd is healthy. It is privately owned. It started off that the Crown owned the herd and then it was sold. Our understanding is that the herd is healthy. The herd started off with approximately 3,500 reindeer and there are over 5,000 now. There are aerial checks with respect to the herd.

In terms of jurisdiction, the Crown has title to the land in the North. The situation is different from the provinces in that we would not have reindeer regulations in the provinces.

The department is negotiating with the Government of the Northwest Territories in terms of devolving land and resource management. We have devolved already in the Yukon. We are in the process of negotiating with the Government of the Northwest Territories. To the extent that the federal government is the land and resource manager on shore now, those responsibilities would be transferred to the territorial government once we reach a final agreement on that.

In terms of First Nations, what the land claim agreements have established, with the Inuvialuit and Gwitch'in and those with whom we have agreements in the North, are regulatory boards. The regulatory boards comment on the amendments. For example, at one point in time we did have the review board look at the amendments to ensure consistency.

There is an added dimension of stakeholders and people with whom we must consult to ensure that the whole regulatory process fits. In terms of where the federal government seeks to go in terms of devolution, transferring land and resource management responsibilities to the Government of the Northwest Territories, amending these regulations is important for the regulations themselves. It is also important, when the regulatory system and the land management responsibilities are transferred, that we are transferring over a working, up-to-date and current system and not a broken system.

Mr. Epp: I just want to follow up on what Mr. Wappel was saying. He seemed to be pushing you into a piecemeal approach: Do this, finish it, do that, finish it. It occurred to me, while that exchange was going on, that if this were compared to building a house, you could not do that. The plumbing, the electricity, the joists and the flooring all must be done in a grand plan.

You did not object to what he was saying. Is it a workable plan to do it piecemeal or do you have to take longer on it and do it all as a package?

Ms. Quinn: Certainly, the advice we have been given is that it must be done as a package because defining the boundary of the reserve where the reindeer would graze is a central piece. I take the advice of the committee and I am quite willing to explore that issue with our legal counsel. It is not the advice we have received to date.

Mr. Wappel: With all due respect to Mr. Epp, this house is built. We are not building a house. The house is already up and occupied. What we are recommending in this committee are certain renovations, which do not all need to be done at the same time.

We are not starting from the bottom up. We have a structure and we are asking you to look for the best way to fix it.

The Joint Chairman (Senator Eyton): We have heard from Ms. Quinn that she and her department are committed to fixing this up after a very many years. What I heard is that you intend to communicate more regularly and more transparently than you have here to date. I say that knowing you have only been on the job three months.

You have also committed to a three-stage process. As I understand it, the first stage was three months and the second stage was four months. I think I heard you say that one year might be a realistic target.

How should the committee respond to that? Does anyone have a cogent suggestion for the committee whereby it may respond to your suggestion?

The Joint Chairman (Mr. Szabo): I want to thank you for trying to answer our questions. Unfortunately, the panel is in an awkward situation. I think you are also aware — if this story were told and the public were advised, would we be very comfortable with that? Of course, the answer is no.

You are not the only department we have an issue with; we have far too many. We must come up with some sort of an approach that will put a reverse onus mechanism in place, but it costs a lot of money to do that. I did a quick calculation and I think this meeting has just cost us $4,000 in human resources costs. I wonder what it cost over the last 23 years. I wonder what would happen if someone just tore up those draft regulations and ignored them. Would the world come to an end? At some point, things are either a priority or they are not; it can work or not work. If we take all the stakeholders necessary to answer all the questions, put them in a room and tell them to come out when they are finished, would we have it done in a weekend? Maybe we should do that and maybe you should do that, if possible.

I do not think we will find it acceptable to exchange more letters. We will certainly be responding.

Before I ask members for any final comments on this, I want to ask our counsel for his observation. He has been with the committee for the longest period of time and he has been looking at how we may improve the processes that we operate under. I think it would be useful to have on the record his input with regard to this consideration.

Peter Bernhardt, General Counsel to the Committee: I am not sure how much I can add to the concerns and questions raised by the members this morning except perhaps to underscore the point Mr. Wappel was making concerning the linkage, or possibly the lack thereof, between the committee's concerns and concerns relating to the surveyor's descriptions.

Amendments promised to the committee will have to be made and will be made in the same way, regardless of how one defines the reserves.

I might suggest one possible route the committee may consider taking. We have heard there will be a progress report with a work plan coming in February. Presumably, at that time, there will be a fixed time frame. I think it would be open to the committee to take the view that, should that time frame be considered excessively long, the committee can fix what it would consider to be a reasonable period of time, or should it appear impossible to adhere to that time frame, perhaps the committee can go on the record in saying it will wish its amendments to be proceeded with independently and without delay.

The Joint Chairman (Mr. Szabo): I would ask Mr. Wappel, who I think really put his finger on the issue, to make a final statement or words of wisdom to the committee as to how we should proceed.

Mr. Wappel: I have no words of wisdom, but as always I have an opinion. I sympathize with Ms. Quinn, being Acting Assistant Deputy Minister for only three months, and with all people whose positions are prefaced with «acting.» It is such a frustration that within the bureaucracy so many excellent people have to wait for a position to be finalized. Who knows, in three months Ms. Quinn might be promoted somewhere else and another person will have to pick up the sticks.

Ms. Quinn has said that she will have a progress report for the joint committee in three months, on the basis of realistic time lines. I would recommend that the joint committee ensure a time line for this matter of exactly three months, to expect INAC's progress report and work plan to be before the committee at that time. I would recommend a review of the report at that time to determine the work plan, time frame and whether it is excessive or reasonable. If it is deemed reasonable, then certainly every three months the joint committee should receive an update until this matter is resolved.

The Joint Chairman (Mr. Szabo): Ms. Quinn, is that unreasonable?

Ms. Quinn: That is very acceptable.

Senator Moore: Ms. Quinn, did you say that you could have something in writing to us next week?

Ms. Quinn: The committee can have the work plan next week but it will not contain the front end in terms of how much time it will take for the department to deal with the discrepancies affecting the back end of it.

Senator Moore: I should like to see that work plan, and the time frame can be filled in soon after that. Perhaps that could happen before the three-month period.

The Joint Chairman (Mr. Szabo): The understanding is that this will occur no later than three months in its totality. Ms. Quinn, you likely understand, from the reaction of the committee, that if members do not consider that the committee has been shown good faith, the committee will act — and this will be confirmed in writing.

The Joint Chairman (Senator Eyton): I suggest one amendment. The time frame loosely suggested is three months. However, the next meeting of the joint committee after the holidays is February 1. Would that date be satisfactory?

Ms. Quinn: Yes.

The Joint Chairman (Mr. Szabo): Are members agreed on the recommendation?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): I thank the witnesses.

The November 30 memorandum received from Mr. Bernhardt on the efficiency of our internal systems is still before the committee. I do not believe that we will get to it today, unfortunately, due to other business, but we will commit to addressing the matter.

SOR/89-93 — ONTARIO FISHERIES REGULATIONS, 1989

(For text of documents, see Appendix B, p. 7B:1.)

Mr. Bernhardt: The note that members have before them summarizes the committee's concern and the history of the file. It also discusses the three provincial court decisions mentioned by departmental officials when they accompanied the minister to the last meeting. Also discussed is the passage from Elmer Dreiger's The Composition of Legislation — Legislative Forms and Precedents, to which reference was made at that meeting. The note concludes with a suggestion that the conclusion reached by the committee in its previous reports remains valid. The enactment of the prohibition in the Ontario Fisheries Regulations against contravening terms and conditions of a licence is designed to do indirectly what cannot be done directly — to impose criminal liability for the breach of terms and conditions of a licence, thus making the administrative actions of officials enforceable as if they were law.

Even leaving aside the issue of legality, a provision such as this can be seen to contravene the committee's criteria as trespassing unduly on rights and liberties, representing an unusual and unexpected use of the enabling authority, and making the rights and liberties of the subject unduly dependent on administrative discretion. During his appearance, the minister indicated that the introduction of comprehensive new fisheries legislation is imminent and that the new legislation would address the committee's concern.

There was also some indication given that, should the committee proceed with another disallowance report, the government would react by reintroducing Bill C-52, the sole purpose of which would be to add a provision similar to subsection 36(2) of the regulations to the Fisheries Act. This would make the provision in the regulations unnecessary.

The question for the committee is whether it wishes to await the enactment of the new comprehensive legislation or whether it wishes to proceed with the disallowance report.

The Joint Chairman (Mr. Szabo): Are there questions or comments?

Mr. Lee: I congratulate counsel on his excellent memo dealing with tricky legal issues. I am pleased that he has addressed the positions taken by the three lower court judges.

I still wake up at night in a cold sweat when I think of the obiter comment of Mr. Justice Marceau in the Kemano II decision at the Federal Court of Appeal in 1989-90. The offhanded obiter remarks that surely Parliament would not have intended this or that were wrong and, arguably, disrespectful. I wanted the record of the joint committee to show that, although the memo will not be part of the formal record, I believe the three lower court judges have attempted to be practical in rendering their decisions but that they have missed the mark on the law. The previous chief counsel and the joint committee had this stuff right for many years. If the joint committee were to adopt the approaches taken by these lower courts and by the department, although the department seems to have agreed with the committee from time to time, we would be heading down a very rocky road in terms of civil liberties and the position of citizens vis-à-vis the state and its administration, insofar as we would be allowing administrators to essentially create quasi-criminal penalties and impose them on citizens without the actions of Parliament. This committee cannot go there and I, as a legislator, cannot allow these three judges and their decisions to stand without comment. I believe the decisions to be wrong and potentially damaging.

It would seem that none of these decisions was appealed and will sit on the books to be cited by other partied litigants. I do not know how to fix that and I did not know how to fix Mr. Justice Marceau's obiter remarks in Kemano II. I want the record to show that.

I would suggest that the joint committee take a business-like approach and not acquiesce and allow this to continue on and on. As was done in respect of the previous disallowance on these fisheries regulations, if the department is not prepared to fix them forthwith, the committee should proceed to a disallowance. If the government wants to introduce another bill for Parliament, that would be great. I simply do not think the committee can acquiesce.

I will acknowledge that disallowance could create a problem of enforcement out there in the real world of the fishery. The bureaucrats will tell us that to revoke the regulation will leave a potential for lawlessness — an absence of enforcement out in the fishery. That might be true, but I do not think we can allow the government and officials to be enforcing illegally, in a way we believe to be illegal.

They have to get it right. I think we do our job best by insisting on a prompt repair, a subscription by government to the principle that we do not allow administrators to make laws and enforce them quasi-criminally. I would be pretty firm on this and deal with it the way we did with the previous files.

Mr. Wappel: I would recommend to the committee that we be more than pretty firm. I recommend to the committee that we be firm. We already sent a notice of intention to disallow to the minister. The committee has already decided that it wanted to disallow this regulation. It already has recommended to the House that this regulation be disallowed.

The only reason that did not happen is that that motion was withdrawn because Bill C-52 was brought forward. That bill would have passed but for the lack of support — ironically, by the fisheries critic, who is now the Minister of Fisheries and Oceans. I would find turnabout being fair play, to see the person who did not want the bill to pass to be the person who introduces it and have it pass. That is what will happen. I cannot see opposition from the Liberal side, since the Liberals were the ones that brought forward the bill.

By the way, I also want to go on record as complimenting counsel. This is why it is so important to listen to both sides and to analyze both sides. Some apparently good arguments were made when we heard from the witnesses last time. That is why we wanted to have our counsel examine and address them and I believe our counsel has done so.

In our disallowance report, I think we can put whatever reasons we want. Correct me if I am wrong. Therefore, I think this entire memo, in some manner — not necessarily verbatim — should not only be attached but should form an integral part of the report. It then becomes the business of the House and Senate. It then becomes public.

One presumes that some defence lawyer, somewhere along the line, may pick it up and analyze it before some poor fisherman, acting on his own behalf — the way I read the cases — tries to wade through all this complex legal mumbo jumbo as an aide-mémoire and then ends up losing — no surprise there. Then, of course, he or she cannot afford to appeal and the case sits on the books.

In my view, there is no point writing to the department. The department has clearly stated, without any hesitation whatsoever, that they do not agree with the committee. They have clearly stated their approach — and I cannot fault them, as a former chair of the Fisheries and Oceans Committee, for wanting to bring the Fisheries Act into the 21^st century. That is fully reasonable. However, I can tell you, as a matter of fact, that that will not occur in the year 2007. It will not happen because of the complexities of the Fisheries Act, never mind all of the political things that may or may not occur in 2007.

I believe we must get on with our job. I think we should prepare a disallowance report for approval at the next meeting, which should contain counsel's previous analysis, as well as the analysis of all the cases that have been cited by the department and the surgical precision with which they have been rejected.

My eyes were certainly opened up by counsel's comments on Dreidger. When she mentioned that, I perked up. Having read that it was a forms book, as opposed to a substantive treatise on the law, that says a lot to me about the kind of argument that was put forward to this committee. I really think we cannot pussyfoot around. We have already told the minister what we will do. I think we should get on and do it.

Mr. Dewar: Some of the comments already have been made, but I want to turn to page 5 of the report that we were given. It really nailed it in the second paragraph, where it said:

A licence, however, is an administrative document; it is not legislation. This means that the terms and conditions attached to the licence will be imposed administratively on a case-by-case basis by the official issuing the licence. Thus, the actual requirements that a licence holder must obey will be set out in the licence, as opposed to the law itself.

Then, the piece on non-compliance follows.

That really captured it for me right there. I think when we questioned at the committee, we heard that we will have new legislation and it will be a green and pleasant land. I would wish that, as well, but it will not happen.

When I asked what plan B is, I think plan B should be plan A for us, with timelines. If the government is going to come forward and say we will present it by date X, we can sit back and say let us go ahead with it.

I have heard from the minister and he said it is ready to go. Perhaps we will be doing him a favour by saying if, by this date, you have not completed it, we can go ahead with what they are calling plan B — we can call it our plan A.

The Joint Chairman (Mr. Szabo): Mr. Wappel has recommended we draft the disallowance documentation for our consideration at the next meeting. Is that agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Agreed, thank you.

Senator Moore: Does counsel issue some kind of a notice immediately so the other department knows we are moving? What is the process?

Mr. Bernhardt: The committee did give the minister a disallowance notice in June, which led to the minister appearing. They are well aware that the committee is considering disallowance.

Formally, the committee has done everything it is required to do. Whether it wants to go an extra step as a courtesy and advise the minister that it will be considering a draft report at the next meeting is entirely at the discretion of the committee. Formally, however, the committee has done everything required of it.

Senator Moore: Mr. Dewar mentioned we might be doing the minister a favour by advancing this. How is he to know that we have made this decision today? Should he get a letter from our joint chair?

The Joint Chairman (Senator Eyton): I would have thought it was pretty ordinary for us just to say that we are not letting this go and that we will consider it in a final way at the next meeting.

Senator Moore: Is someone going to write the minister on this? That is what I am suggesting.

The Joint Chairman (Mr. Szabo): You are suggesting that we give them a heads-up now that we are working on a disallowance.

Mr. Wappel: I think Mr. Dewar and Senator Moore are absolutely correct. If we write a brief letter indicating to the minister what we have decided here today, he can wave that letter under the nose of the House leader, or whoever else makes the decision as to what bills are called when. Bearing in mind this is our last meeting until February, that gives the government lots of time to decide what it wants to do.

The Joint Chairman (Mr. Szabo): It sounds like a good idea. Let us not even vote on that; let us just ask our counsel to make the appropriate communication. Do you want to do it from the co-chairs or yourself?

Mr. Bernhardt: I will draft a letter from the co-chairs.

The Joint Chairman (Mr. Szabo): We will get that out before we rise. Even if we have risen, someone will sign these letters.

Mr. Wappel: I notice it is almost 10 a.m. I wonder if members might consider skipping to «Reply Unsatisfactory,» because those are ones that have some meat to them and we should perhaps decide whether or not we consider the reply to be unsatisfactory, as opposed to the routine stuff, given the time.

[Translation]

SOR/2004-122 — REGULATIONS AMENDING THE CERTIFICATION OF ORIGIN OF GOODS EXPORTED TO A FREE TRADE PARTNER REGULATIONS

SOR/2004-127 — REGULATIONS AMENDING THE TARIFF ITEM NOS. 9971.00.00 AND 9992.00.00 ACCOUNTING REGULATIONS

SOR/2004-128 — REGULATIONS AMENDING THE TEMPORARY IMPORTATION (TARIFF ITEM NO. 9993.00.00) REGULATIONS

SOR/2004-129 — CCRFTA VERIFICATION OF ORIGIN REGULATIONS

SOR/2005-257 — DEFINITION OF "SETTLER'' FOR THE PURPOSE OF TARIFF ITEM NO. 9807.00.00 REGULATIONS

(For text of documents, see Appendix C , p. 7C:1.)

Jacques Rousseau, Counsel: Mr. Chairman, the five items under the heading "Reply Unsatisfactory'' all have one problem in common.

Before I get to this problem which is the subject of a note to the committee, I would like to point out that in the case of SOR/2004-129, two amendments were promised in response to the letter of December 12, 2005 sent by committee counsel.

Regarding SOR/2004-122, two problems were identified by the committee, which continues to exchange correspondence with the Canada Border Services Agency about one of the two points raised.

I now come to the problem common to the five regulations first examined by the committee at its meeting of May 19, 2005.

At that meeting, the reply of the Canada Border Services Agency was deemed unsatisfactory. Except for a reference to section 3 of the Public Service Rearrangement and Transfer of Duties Act, the agency's letter of August 16, 2006 adds very little, if anything, new to the initial reply.

When the regulations in question were first adopted, the relevant legislation expressly provided for these to be adopted on the recommendation of the Minister of National Revenue. However, in the first four instances, the regulations were adopted on the recommendation of the Solicitor General and, in the fifth instance, on the recommendation of the Minister of Public Safety and Emergency Preparedness.

The issue is whether the legislative provisions which expressly provide for the Minister of National Revenue to recommend the adoption of the regulations were implicitly repealed and replaced by a Governor-in-Council order under the Public Service Rearrangement and Transfer of Duties Act.

In the opinion of committee counsel, that is not the case. The courts are extremely reluctant to rule that Parliament can implicitly repeal and replace legislative provisions that it may have adopted. Naturally they are more reticent when provisions are implicitly repealed or replaced by a Governor-in-Council order.

Also, the fact that the scope of the provisions would become unclear is another reason for not accepting the agency's position on this matter.

If the committee insists that these regulations should be adopted on the recommendation of the Minister of National Revenue, this would mean the regulations are invalid. The note to the committee ended by briefly mentioning the changes that could be made, if necessary.

If the committee agrees that the regulations are invalid, then counsel will send another letter to the agency explaining the committee's position and any changes that would need to be made.

[English]

Mr. Wappel: I agree. If the regulation states that it must be recommended by the Minister of National Revenue, that is what it states. I guess they got caught having made a mistake and do not want to admit it.

What I do not understand exactly are the recommendations. On page 4, it says: "The simplest way of remedying the problem of the validity of these regulations in the future would be for the Governor-in-Council to adopt them again.''

I am not sure what the phrase «in the future» means and whether that is different than the last line, which is: "Another way would be for Parliament to intervene through legislation to correct the matter retroactively.''

We have two recommendations, one for the future, one for the past. Where is the present and what is the recommendation?

[Translation]

Mr. Rousseau: For the future, certainly re-enact the regulations in question on the recommendation of the Minister of Public Safety and Emergency Preparedness.

As far as the past is concerned, some people may possible owe some money because the regulations that were adopted — regulations that were invalid — resulted in their not having to pay money to the Crown. Therefore, in that respect, a remission order may be required so that these persons would not be bothered in the future by past issues, namely the fact that these invalid regulations were applied, and because of that, they did not pay money that they would normally have had to pay.

I do not know if I have answered your question fully.

[English]

Mr. Wappel: If we recommend that the only way to correct the past is through legislation, would it not be appropriate to have the legislation deal with the future as well. Could we not say that retroactively it could have been the Minister of National Revenue, Solicitor General, the Minister of Emergency Preparedness or any embodiment of any of those people or in the future it can be any of the three, or something like that? If your recommendation is that the past be solved by retroactive legislation, should we not deal with the future in the legislation or recommend the same?

[Translation]

Mr. Rousseau: You are correct. Parliament must fully resolve this matter, for the sake of the past as well as the future, assuming that these regulations were adopted properly. It is a simple as that. However, it would be much harder to secure a legislative amendment than it would be to re-enact the regulations. That would resolve any future problems, while a remission order would forgive any debt issues.

[English]

The Joint Chairman (Mr. Szabo): The past and the future and, as it is Christmas, we might as well have the present.

Counsel, how are we to proceed on this in the most appropriate fashion?

Mr. Bernhardt: It would be a case of writing back to the department and putting the various options to it. In the end, it is their choice. There are a couple of ways they can go. We can lay them out for them and they can choose which one of the various options seems to work the best from their point of view.

The Joint Chairman (Mr. Szabo): Procedurally, from an administrative approach, are we doing their work for them? Will it help them by providing additional information and feedback from the committee? That is the real question.

Mr. Bernhardt: I think it may help them focus on the issues if one can conclude the arguments with, «Here is how you go about fixing the problem.» It may help them crystallize the committee's stand.

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

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Agreed.

Senator Moore: When we write, we will not wait six months for an answer, I trust. Will we say we would like a response in 30 days? We are trying to co-operate here; we would like to have a little reciprocity.

[Translation]

Mr. Rousseau: My sense is that the senior counsel will wish to say a few words about this. It is extremely difficult to request a response within 30 short days. Occasional attempts to do so have shown that it is very hard in most cases for the departments to respond within 30 days. Before they will admit that their regulations are invalid, they will want to consult with the Department of Justice's team of legal experts.

[English]

Senator Moore: If 30 days is too short, what is the appropriate amount of time? It is not as if it is a brand new file with a new issue being dropped on the desk. The lawyers have been dealing with it for a while. They are probably anticipating it will be returned.

Mr. Bernhardt: The standard practice we have internally is that a file comes forward after four months. At that point, if a reply has not been received, then we start following up asking where the reply is.

I guess you can take it that it is generally considered that four months is a reasonable time to get together with your various lawyers to discuss options and draft something, have it go down the chain of command, back up and get it to the committee. Having said that, that is simply an internal practice.

Senator Moore: Do departments know that and do they think they can get around it?

The Joint Chairman (Mr. Szabo): Counsel and joint chairs have talked about this and are slowly trying to put into the communications that departments clearly understand that the committee has put the ball in their court, if there is a problem, which they identify that we expect prompt communication. In any event, it will be that this matter be resolved or brought forward a further step within a period that counsel feels is reasonable given the particular circumstances. Some should be within 30 days and some should be within three or four months.

Mr. Bernhardt: When the committee is looking for a progress report, 30 days might be perfectly reasonable.

The Joint Chairman (Mr. Szabo): We will leave that to some discretion.

Mr. Lee: I had one additional item for mention to counsel.

The Joint Chairman (Mr. Szabo): First, we will finish Reply Unsatisfactory. We will allow the latitude to counsel in terms of setting that time frame. Our posture has slowly shifted to say that it is up to the department to provide a good faith response within a reasonable period of time, whether it be a progress report or a final resolution recommendation back to the committee so that the committee can prepare its final report. Whether it will be 30 days or three months will be the discretion of counsel. Are members agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Mr. Lee, please proceed with your item.

Mr. Lee: Members might have noticed that a bill went through the House very quickly this week entitled, "First Nations Jurisdiction over Education in British Columbia.'' It provides that First Nations communities in British Columbia can enter into education agreements with the province.

Buried in that bill is a provision that allows First Nations to make the rules and regulations that will support the legislation after the bill is enacted. Also contained in the bill is a clause that states none of the regulations are statutory instruments and, presumably, cannot be reviewed by this committee. That caught my eye.

Apparently, the proposed legislation was expedited through the House, and appeared to be non-controversial. However, buried in the bill is a provision that prevents Parliament from having any scrutiny of the regulations made by the First Nations community under the agreement. I think that is a very poor approach. There is no reason, that I can see, for such an exception to the delegated legislation from the scrutiny of Parliament. I think it is dangerous for the people who would be governed by the legislation. I would ask two things — first, that counsel quickly review this proposed legislation and, second, that the joint chairs advise immediately their respective counterparts in Senate and House committees that would review this bill to please do so with that information in mind. It is an important point.

Senator Moore: Senator Eyton, when that bill comes before the Senate, could it be referred to this committee? Does it have to be referred to the Legal Affairs Committee?

The Joint Chairman (Senator Eyton): It can easily be referred to this committee.

The Joint Chairman (Mr. Szabo): The problem is that there are areas of responsibility beyond the mandate of this committee and the propriety of the legislative provisions. One way or the other, it is an excellent catch by Mr. Lee.

Mr. Wappel: Mr. Lee is spot on. Certainly, I did not notice it. When counsel reviews the bill and finds an issue, I would suggest that the joint chairs consider asking to be witnesses before the appropriate Senate committee, with counsel at their side to give the legal arguments or the perspective of this committee. Obviously, we would have to meet and develop that perspective beforehand. I would hope that in the next five or six days nothing will go through the Senate quickly, although we cannot be certain. If it receives third reading in the Senate, then we have lost the opportunity. If it does not, I would suggest that the joint chairs consider being witnesses on the bill. Of course, counsel would accompany the joint chairs to help to elucidate the arguments.

Mr. Lee: It went through the House like oats through a reindeer. The same thing could happen in the Senate, given the pre-holiday mood, and it is not a particularly partisan matter.

However, I should like the committee to have an opportunity to consider it later, whether the committee should study this issue of expecting regulation-making from review by the committee and whether we should report to the House on it if this is to be a practice in the future.

The Joint Chairman (Mr. Szabo): There might be some urgency in this item. I have heard that we would like to immediately notify the Senate committee to which this bill will be referred about the concerns and that we offer, if required, representation witnesses from this committee. It would also be useful to write a letter to the department asking for their explanation or rationalization for this new approach by the new government so that committee members can better understand this, and will want to know in any event. The trigger point for the committee to consider will be whether we have a matter that the committee should further explore. Let us set the record straight, if necessary, as to the legislative responsibilities and criteria of the regulations. Are members agreed?

The Joint Chairman (Senator Eyton): If this bill were referred to the Standing Senate Committee on Legal and Constitutional Affairs, a study of it would not likely begin soon because the Legal Committee is seriously backed logged in its work. On the other hand, if the only issue about the bill is the one presented by Mr. Lee, I think the bill could be referred to this committee. You would need some determination that that is the singular issue, but this committee would be as good as any other committee to consider the point you have raised.

Mr. Stanton: The points raised are pertinent. I have not looked at this bill with the same thoroughness as my colleague.

The bill involves agreements with a province with respect to the implementation and delivery of education facilities and working together with the First Nations at the provincial level. I do not know whether that is in the realm of a Memorandum of Understanding but an overlay might be part of the picture that will need to be considered as well.

The Joint Chairman (Mr. Szabo): That is a good point. Counsel has heard the concerns and comments of the committee and will take the appropriate action on behalf of the committee to ensure that this matter does not slip through the cracks.

SI/2005-86 — PROCLAMATION GIVING NOTICE OF THE COMING INTO FORCE ON OCTOBER 6, 2004 OF THE CONVENTION BETWEEN CANADA AND BELGIUM FOR THE AVOIDANCE OF DOUBLE TAXATION

SI/2005-87 — PROCLAMATION GIVING NOTICE OF THE COMING INTO FORCE ON DECEMBER 31, 2004 OF THE CONVENTION BETWEEN CANADA AND ROMANIA FOR THE AVOIDANCE OF DOUBLE TAXATION

SI/2005-88 — ORDER AMENDING THE LABRADOR INNU SETTLEMENTS REMISSION ORDER, 2003

SI/2005-104 — ORDER FIXING NOVEMBER 1, 2005 AND JANUARY 2, 2006 AS THE DATES OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2005-105 — EXCLUSION APPROVAL ORDER FOR THE APPOINTMENTS OF CERTAIN EMPLOYEES TO CERTAIN POSITIONS IN THE DEPARTMENT OF FISHERIES AND OCEANS

SI/2005-106 — REPUBLIC OF CAMEROON REMISSION ORDER

SI/2005-107 — ORDER AUTHORIZING THE ISSUE OF NON-CIRCULATION COINS OF THE DENOMINATION OF TWENTY-FIVE DOLLARS

SI/2005-108 — ORDER AUTHORIZING THE ISSUE OF NON-CIRCULATION COINS OF THE DENOMINATION OF ONE HUNDRED AND TWENTY-FIVE DOLLARS

SI/2005-109 — ORDER AUTHORIZING THE ISSUE OF NON-CIRCULATION COINS OF THE DENOMINATION OF TWO HUNDRED AND FIFTY DOLLARS

SI/2005-110 — ORDER AUTHORIZING THE ISSUE OF NON-CIRCULATION COINS OF THE DENOMINATION OF TWO THOUSAND FIVE HUNDRED DOLLARS

SI/2005-111 — ORDER FIXING FEBRUARY 1, 2006 AS THE DATE OF THE COMING INTO FORCE OF SECTION 2 OF THE ACT

SI/2005-114 — LIST OF PEST CONTROL PRODUCT FORMULANTS AND CONTAMINANTS OF HEALTH OR ENVIRONMENTAL CONCERN

SI/2005-116 — ORDER FIXING DECEMBER 1, 2005 AS THE DATE OF THE COMING INTO FORCE OF SECTION 474 OF THE ACT

SI/2005-117 — ORDER FIXING DECEMBER 1, 2005 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2005-119 — ORDER FIXING DECEMBER 12, 2005 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2005-121 — ORDER FIXING DECEMBER 30, 2005 AS THE DATE ON WHICH THE PUBLIC SERVICE EMPLOYMENT ACT IS REPEALED

SI/2005-122 — ORDER FIXING DECEMBER 31, 2005 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2005-123 — ORDER FIXING DECEMBER 31, 2005 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2005-124 — ORDER DESIGNATING THE MINISTER OF CANADIAN HERITAGE FOR PURPOSES OF SECTION 23 OF THE ACT

SI/2005-125 — ORDER DESIGNATING THE MINISTER OF CANADIAN HERITAGE FOR PURPOSES OF SECTION 110 OF THE ACT

SI/2005-126 — ORDER FIXING DECEMBER 30, 2005 AS THE DATE OF THE COMING INTO FORCE OF PART 17 OF THE ACT

SI/2005-130 — PROCLAMATION DISSOLVING PARLIAMENT

SI/2005-131 — PROCLAMATION ISSUING ELECTION WRITS

SI/2005-132 — PROCLAMATION SUMMONING PARLIAMENT TO MEET ON FEBRUARY 20, 2006

SI/2005-133 — ORDER REPEALING CERTAIN EXCLUSION APPROVAL ORDERS

SI/2005-134 — ORDER AMENDING THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT DEPUTY HEADS OF THE PUBLIC SERVICE OF CANADA ORDER

SI/2006-3 — ORDER AUTHORIZING THE ISSUE OF NON-CIRCULATION COINS OF THE DENOMINATION OF THREE HUNDRED AND FIFTY DOLLARS

SI/2006-4 — ORDER DESIGNATING THE POSITION OF DEPUTY MINISTER OF NATIONAL DEFENCE TO THE POSITION OF DEPUTY HEAD IN RESPECT OF THE COMMUNICATIONS SECURITY ESTABLISHMENT

SI/2006-5 — ORDER TERMINATING VARIOUS ASSIGNMENTS

SI/2006-6 — ORDER ASSIGNING THE HONOURABLE DAVID EMERSON TO ASSIST THE MINISTER OF TRANSPORT AND THE MINISTER OF CANADIAN HERITAGE

SI/2006-7 — ORDER ASSIGNING THE HONOURABLE MICHAEL CHONG TO ASSIST THE MINISTER OF CANADIAN HERITAGE

SI/2006-8 — ORDER ASSIGNING THE HONOURABLE TONY CLEMENT TO ASSIST THE MINISTER OF INDUSTRY

SI/2006-9 — ORDER ASSIGNING THE HONOURABLE JOSÉE VERNER TO ASSIST THE MINISTER OF CANADIAN HERITAGE

SI/2006-10 — ORDER AMALGAMATING THE DEPARTMENT OF SOCIAL DEVELOPMENT AND THE DEPARTMENT OF HUMAN RESOURCES AND SKILLS DEVELOPMENT UNDER THE AUTHORITY OF THE MINISTER AND THE DEPUTY MINISTER

SI/2006-11 — ORDER AMALGAMATING AND COMBINING THE DEPARTMENT OF INTERNATIONAL TRADE AND THE DEPARTMENT OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE UNDER THE MINISTER AND THE DEPUTY MINISTER OF FOREIGN AFFAIRS

SI/2006-12 — ORDER REPEALING THE ORDER DESIGNATING THE DEPARTMENT OF INTERNATIONAL TRADE AS A DEPARTMENT AND THE DEPUTY MINISTER AS DEPUTY HEAD

SI/2006-13 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2006-14 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2006-15 — ORDER AMENDING THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT DEPUTY HEADS OF THE PUBLIC SERVICE OF CANADA ORDER

SI/2006-16 — ORDER TRANSFERRING FROM THE MINISTER OF INDUSTRY TO THE REGISTRAR OF LOBBYISTS THE CONTROL AND SUPERVISION OF THE OFFICE OF THE REGISTRAR OF LOBBYISTS

SI/2006-17 — ORDER DESIGNATING THE REGISTRAR OF THE OFFICE OF THE REGISTRAR OF LOBBYISTS AS DEPUTY HEAD

SI/2006-18 — ORDER DESIGNATING THE OFFICE OF THE REGISTRAR OF LOBBYISTS AS A DEPARTMENT AND THE REGISTRAR AS DEPUTY HEAD

SI/2006-19 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2006-20 — ORDER AMENDING THE ACCESS TO INFORMATION ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

SI/2006-21 — ORDER AMENDING THE CANADIAN SECURITY INTELLIGENCE SERVICE ACT DEPUTY HEADS OF THE PUBLIC SERVICE OF CANADA ORDER

SI/2006-22 — ORDER TRANSFERRING FROM THE MINISTER OF STATE (INFRASTRUCTURE AND COMMUNITIES) TO THE MINISTER OF TRANSPORT THE CONTROL AND SUPERVISION OF THE OFFICE OF INFRASTRUCTURE OF CANADA

SI/2006-23 — ORDER DESIGNATING THE MINISTER OF TRANSPORT AS MINISTER FOR PURPOSES OF THE ACT

SI/2006-24 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE JOHN FERGUSON GODFREY

SI/2006-25 — ORDER DESIGNATING THE MINISTER OF TRANSPORT AS APPROPRIATE MINISTER FOR THE CANADA LANDS COMPANY LIMITED FOR PURPOSES OF THE ACT

SI/2006-26 — ORDER DESIGNATING THE MINISTER OF TRANSPORT AS APPROPRIATE MINISTER FOR THE QUEENS QUAY WEST LAND CORPORATION FOR PURPOSES OF THE ACT

SI/2006-27 — ORDER TRANSFERRING FROM THE MINISTER OF NATIONAL REVENUE TO THE MINISTER OF TRANSPORT THE CONTROL AND SUPERVISION OF THE ROYAL CANADIAN MINT

SI/2006-28 — ORDER DESIGNATING THE MINISTER OF TRANSPORT AS MINISTER FOR PURPOSES OF THE ACT

SI/2006-29 — ORDER TRANSFERRING FROM CANADA REVENUE AGENCY TO THE DEPARTMENT OF TRANSPORT THE CONTROL AND SUPERVISION OF THE ROYAL CANADIAN MINT AND THE CANADA POST CORPORATION

SI/2006-30—ORDER TRANSFERRING FROM THE OFFICE OF INFRASTRUCTURE OF CANADA TO THE DEPARTMENT OF TRANSPORT THE CONTROL AND SUPERVISION OF THE CANADA LANDS COMPANY LIMITED AND THE QUEENS QUAY WEST LAND CORPORATION

SI/2006-31—ORDER DESIGNATING THE MINISTER OF TRANSPORT AS MINISTER FOR PURPOSES OF THE ACT

SI/2006-32—ORDER DESIGNATING THE MINISTER OF TRANSPORT AS APPROPRIATE MINISTER WITH RESPECT TO THE NATIONAL CAPITAL COMMISSION FOR PURPOSES OF THE ACT

SI/2006-33—ORDER DESIGNATING THE PRESIDENT OF THE TREASURY BOARD TO REPRESENT HER MAJESTY IN RIGHT OF CANADA FOR PURPOSES OF THE ACT

SI/2006-34 — ORDER DESIGNATING THE PRESIDENT OF THE TREASURY BOARD AS MINISTER RESPONSIBLE FOR MATTERS RELATING TO THE ACTIVITIES OF THE FEDETAL GOVERNMENT WITH RESPECT TO THE TORONTO WATERFRONT REVITALIZATION INITIATIVE

SI/2006-35 — ORDER TRANSFERRING FROM THE MINISTER OF CITIZENSHIP AND IMMIGRATION TO THE PRESIDENT OF THE TREASURY BOARD THE POWERS, DUTIES AND FUNCTIONS RELATING TO THE CONTRIBUTION AGREEMENT

SI/2006-36 — ORDER TRANSFERRING FROM THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION TO THE TREASURY BOARD THE CONTROL AND SUPERVISION OF THE TORONTO WATERFRONT REVITALIZATION INITIATIVE SECRETARIAT

SI/2006-37 — ORDER DESIGNATING THE LEADER OF THE GOVERNMENT IN THE HOUSE OF COMMONS AS MINISTER FOR PURPOSES OF THE ACT

SI/2006-38 — ORDER DESIGNATING THE LEADER OF THE GOVERNMENT IN THE HOUSE OF COMMONS AS MINISTER FOR PURPOSES OF THE ACT

SI/2006-39 — ORDER DESIGNATING THE LEADER OF THE GOVERNMENT IN THE HOUSE OF COMMONS AS RESPONSIBLE MINISTER FOR PURPOSES OF THE ELECTORAL BOUNDARIES READJUSTMENT SUSPENSION ACT, 1994

SI/2006-40 — ORDER DESIGNATING THE LEADER OF THE GOVERNMENT IN THE HOUSE OF COMMONS AS RESPONSIBLE MINISTER FOR PURPOSES OF THE REFERENDUM ACT

SI/2006-41 — ORDER DESIGNATING THE MINISTER OF HUMAN RESOURCES AND SOCIAL DEVELOPMENT AS APPROPRIATE MINISTER FOR PURPOSES OF THE ACT

SI/2006-42 — ORDER DESIGNATING THE MINISTER OF HUMAN RESOURCES AND SOCIAL DEVELOPMENT AS APPROPRIATE MINISTER FOR PURPOSES OF THE ACT

SI/2006-43 — ORDER DESIGNATING THE MINISTER OF AGRICULTURE AND AGRI-FOOD AS MINISTER FOR PURPOSES OF THE ACT

SI/2006-44 — ORDER DESIGNATING THE MINISTER OF ENVIRONMENT AS MINISTER FOR PURPOSES OF THE ACT

SI/2006-45 — ORDER TRANSFERRING FROM PRIVY COUNCIL OFFICE TO THE DEPARTMENT OF CANADIAN HERITAGE THE CONTROL AND SUPERVISION OF THE OFFICIAL LANGUAGES SECRETARIAT

SI/2006-46 — ORDER TRANSFERRING FROM THE PRIME MINISTER TO THE PRESIDENT OF THE QUEEN'S PRIVY COUNCIL FOR CANADA THE CONTROL AND SUPERVISION OF THE CANADIAN INTERGOVERNMENTAL CONFERENCE SECRETARIAT

SI/2006-47 — ORDER TRANSFERRING FROM THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS TO THE MINISTER OF CANADIAN HERITAGE THE CONTROL AND SUPERVISION OF THE OFFICE OF INDIAN RESIDENTIAL SCHOOLS RESOLUTION OF CANADA

SI/2006-50 — PROCLAMATION SUMMONING PARLIAMENT TO MEET ON APRIL 3, 2006

Mr. Bernhardt: There are 72 statutory instruments presented to the committee this morning that were reviewed and found to comply with the scrutiny criteria.

The Joint Chairman (Mr. Szabo): Are there questions or comments? Is it agreed that the committee adopt the report of those items?

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): The items not addressed today will stand until the next meeting, February 1, 2007.

The committee adjourned.

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