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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 6 - Evidence, June 10, 2010
OTTAWA, Thursday, June 10, 2010
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:37 a.m. for the review of statutory instruments.
Senator Yonah Martin and Mr. Andrew Kania (Joint Chairs) in the chair.
The Joint Chair (Mr. Kania): Good morning, everyone. We will start with the first item on the agenda.
SOR/94-439 — NATIONAL PARKS CAMPING REGULATIONS, AMENDMENT
SOR/94-512 — NATIONAL PARKS GENERAL REGULATIONS, AMENDMENT
(For text of document, see Appendix A, p. 6A:1.)
Peter Bernhardt, General Counsel to the Committee: Just to refresh members' memories, this item concerns the fees for national parks, which are presently fixed by the minister under the Parks Canada Agency Act. The committee has taken the view that, because of subsection 4(1) of the Canada National Parks Act, however, the imposition of fees for access to and use of national parks must be done by regulations made by the Governor-in-Council under that act.
Section 4(1) states that national parks are "dedicated to the people of Canada for their benefit, education and enjoyment, subject to this Act and the regulations." The committee has taken this to mean that Parliament intended that the right to use national parks could only be restricted in accordance with the Canada National Parks Act or its regulations.
Imposing fees is a restriction on the right of access to and use of a park. Therefore, these fees have to be imposed by regulations under the Canada National Parks Act, not through regulations under the Parks Canada Agency Act. Even if this was not the case, there would still be the need to clarify how the fee-setting provisions found in the two statutes are intended to operate together.
When this file was last before the committee, members wished the minister to be advised that, in the absence of an undertaking to introduce statutory amendments to resolve the committee's concerns, the committee wished the appropriate officials to appear this morning to explain why this was not possible.
In the June 1 reply from the minister, the minister reports that options will be identified to resolve the committee's concerns, including possibly amending the relevant provisions in the Parks Canada Agency Act. The minister also undertakes to inform the committee of the results of that review.
This is a significant step forward. Although no specific course of action has been promised, it does appear the committee has obtained agreement that there is a problem and that the problem needs to be addressed. In view of this, the joint chairs last week determined that the witnesses would not be required to attend, at least for the time being. This was in accordance with the authorization received from the committee at the last meeting.
At this point, the questions that remain would be the time frame and the precise course of action that is to be taken. If members agree, the file could be followed up in the fall. By that time, the review the minister referred to in his letter should have been completed and hopefully further particulars will be available.
The Joint Chair (Mr. Kania): Are there any comments?
Senator Harb: The issue is the time. Perhaps we could write a letter back asking for a specific time frame.
The Joint Chair (Mr. Kania): With perhaps advice that we will be following up in the fall.
Ms. Gallant: Does that have to do just with entry fees into the park, or camping fees?
Mr. Bernhardt: This would be a wide variety of fees, anything pertaining to the use of the park — I suppose potentially keeping in mind that we do have some national parks out west that have communities in them. If you are talking about Banff and Jasper, there are also fees there for garbage, sewers and business licence fees — things that would be the subject of municipal taxes in most municipalities.
Those are the subject of fees right now under the Parks Canada Agency Act as well. While one tends to think of entrance fees, camping fees and things like that, there is another whole variety of fees that pertain to certain other parks as well that could come into play here.
Ms. Gallant: Is it our role to give input as to the definition of the fees or just as to who decides what the fees are?
Mr. Bernhardt: The committee's role would be to ensure that those fees have a valid basis in law. There are two acts that set out fee provisions for parks. There is the Canada National Parks Act, which says that the Governor-in-Council can make regulations setting fees; and there is the Parks Canada Agency Act, which says the minister can fix fees for things the agency provides.
Right now, under the agency act, you find all the national parks' fees. The problem is, section 4(1) of the Canada National Parks Act says that the parks of Canada are dedicated to the people of Canada, and their right to use the parks is to be restricted under that act. The committee takes that to mean that fees are to be set under only that act.
Ms. Gallant: Can we make the point that entry fees should be on par with fees for private enterprises that provide the same services?
Mr. Bernhardt: The committee's mandate is a legal and technical one. It is not a policy mandate. As far as the amount of the fees, how much is being collected, those sorts of things fall outside the committee's mandate. Once the committee has satisfied itself that the fee is legally in place, how that fee is determined — what the amount of the fee is, what it should be charged for — those sorts of policy decisions are beyond the mandate of this committee.
Mr. Szabo: We are getting into a very rare situation. By the time we get back, committees will be restruck and the calendar will have advanced substantially. I do not know why, but we have taken this route on not only this issue but also on a number of other issues.
My suggestion would be not simply to say that everything is just fine, carry on and hope that everything works out. I would suggest that we ask that they not only report their findings, but that they also make a commitment to take the necessary steps to have the changes made; and indicate at the same time that should that not be done, at our next meeting we will request an appearance before the committee at the earliest opportunity. It is almost an opportunity for us to say that we trust you, but we need to get this addressed. I am not sure that the letter should just simply be thanks for letting us know. It has to be a little bit more.
Senator Poirier: There are national parks with no communities inside, but have other fees than those of entry and camping. There are other fees within the park that exist because the park contracts out — fees for people using the trails, renting a bicycle, canoe or paddleboat, et cetera. Would this statute touch those fees also?
Mr. Bernhardt: Yes; the document is called the Parks Canada master list of fees. It has a section for each park and it sets out the various fees. Of course, there is always an entrance fee, but depending on what else is offered at that park and what other activities go on at that park, you will see a variety of other fees. There may be a fee for tour bus operators; there may be a fee for floatplane landing or for firewood. It runs a broad gamut, depending on each particular park.
Senator Poirier: Would the changes we are looking for take away that right to have these fees in place?
Mr. Bernhardt: No. The issue here is the proper means of fixing those fees. At present, they are fixed on an administrative basis by the minister under the Parks Canada Agency Act. The committee, in its report, took the position that these fees need to be established by regulations made by the Governor-in-Council under the Canada National Parks Act.
The Joint Chair (Mr. Kania): Are there any other comments?
Ms. Gallant: In our response, my input would be that there should be correspondence or input from policy-makers, as opposed to just someone who is not accountable solely making the decisions. Parliamentarians should have input as to how the matter was decided, which act is paramount.
That is my recommendation.
The Joint Chair (Mr. Kania): Are there any other comments?
Mr. Albrecht: I simply think that it is best to proceed with counsel's recommendation. Write the letter, add the proviso put by Mr. Szabo, that we expect action on this matter by the fall, and let them carry on with the administrative part of making the two acts jive.
Mr. Galipeau: There was a reason we gave them a short leash to begin with. It was to avoid exactly that, postponements and further postponements into never-never land. What will happen between now and the fall, we do not know. Something nice, something nasty, I cannot predict the future; but we had given them a short leash.
They responded with what appears on the surface to be a gesture of good faith; but if there really was good faith, they would have offered that gesture earlier in the process. Therefore, be very careful.
The Joint Chair (Mr. Kania): Are there any other comments?
Mr. Szabo: This has been on the agenda a number of times.
The Joint Chair (Mr. Kania): Write a letter as indicated. I think Mr. Albrecht summarized it properly, so I will not do it again; but also advise them in the letter that this matter will be on our agenda of our first meeting back in the fall.
Mr. Bernhardt: And that we hope to have the results of their review at that time.
SOR/2005-293 — BASIN HEAD MARINE PROTECTED AREA REGULATIONS
(For text of document, see Appendix B, p. 6B:1.)
Mr. Bernhardt: Mr. Chair, initially the department was simply asked to explain why certain provincial legislation was referred to as amended from time to time but no such reference was used in connection with the federal legislation that was mentioned in the regulations. Initially the department indicated this was an inconsistency that would be eliminated. Subsequently, however, it advised that it was of the view that sub-section 40(2) of the Interpretation Act made all references to federal legislation as amended from time to time anyway. Therefore, it was not necessary to say this. The same rule would not apply to references to provincial legislation in federal laws.
As was explained to the department on more than one occasion, however, subsection 40(2) of the Interpretation Act refers only to amendments made to incorporated legislation prior to the enactment of the reference; that is, to that legislation as it was amended to the time of the reference, not as amended from time to time in the future. The department was referred to a well-known legal text on this point.
The department then wrote to say it preferred to defer any further discussion pending completion of the federal government's review of incorporation by reference generally. This seemed odd given the issue here is not as it often is, whether incorporation by reference is authorized, but simply whether the references in these regulations had the desired effect.
This being so, a reply addressing this particular point was requested in September 2008. No reply was received despite three subsequent requests.
The file again came due for follow-up in January. At this point, having received no reply and having made several subsequent requests, the usual procedure would have been for the joint chairs to write to the minister to seek her cooperation in ensuring the department provide a reply.
At that time, however, the committee had not yet been constituted so that was not possible. Instead, I advised the department that the file would be submitted to the committee in the new session whether or not a reply had been received.
As members can see, that was not any more successful. To date, there has still been no reply. At this point, it would be a question of writing to the minister directly to point that out and asking that the minister intervene to ensure the reply is forthcoming.
Senator Moore: I do not think that is enough. Bring them in here to appear. We will get a reply then.
The Joint Chair (Mr. Kania): On a practical basis, we have one meeting left next week. Are you suggesting that we write a letter asking the minister for a response and advising that we expect officials to be present for the first meeting in the fall unless the response is satisfactory?
Senator Moore: Yes.
The Joint Chair (Mr. Kania): Any comments upon that proposal?
Mr. Albrecht: I disagree. We all recognize there have been transitions in ministers in this department. We at least owe it to the current minister to have the opportunity to reply. If there is not a reply, then we take more serious action.
The Joint Chair (Mr. Kania): Other comments?
Mr. Szabo: I have a history with the Department of Fisheries of Oceans. I have spoken with the minister personally, particularly about our 25-year-old file. There is no appetite. It will not happen. Minority parliaments are difficult, unless you have a commitment at the beginning of a mandate to put in legislation, which was the fix.
This issue is classically symptomatic of what we have been through over 25 years from Fisheries and Oceans. We need a relationship that is better than what it is now. I agree with Senator Moore. If we continue simply to be nice back and forth, there will be other files in the same situation 25 years from now.
We need a commitment. It has to be kicked up a notch on this specific matter, although it is not the 25-year-old file. We can resolve things; there are ways to deal with this situation. I do not see good faith indications in the communications currently. We ought to ask for it.
The Joint Chair (Senator Martin): I appreciate what Mr. Szabo is saying about the need for a better relationship. In light of establishing a good relationship, especially with a newer minister, I wonder if allowing one week in demanding her response is too forceful. I suggest a strong letter letting her know that we want a stronger commitment and a clear response by the first meeting in the fall. Giving one week to respond and saying we need to talk to her does not show our willingness to improve the relationship.
Senator Harb: I agree with most of the comments. We have to bring the minister into the loop. Most of the communication has been between legal counsels and so on. There is a back and forth of consulting with our legal advisers and we were told this and that. This will go nowhere.
Go straight to the minister with a letter bringing her into the loop, as well as her deputies if necessary, along with the people who have been communicating with the committee. Have the joint chairs of the committee sign the letter and put the minister and her officials on notice that we intend to have them appear at the first or second meeting in the fall. That is the way to go.
Senator Moore: I did not understand the one week reference. Was there a suggestion that we give one week? I do not think that was the intent. I thought the suggestion was a letter to the minister seeking a response and summarize the events — nothing has happened; we are writing to you now; we expect a response indicating your plan; we want it by whenever; and otherwise, she can expect to be called before the committee.
The Joint Chair (Mr. Kania): It would be much like the Parks Canada letter. We want a satisfactory response by the first meeting or else we expect witnesses at the first meeting.
Mr. Albrecht: To try to remove the confusion of one week, I think the one week reference came after Senator Moore's suggestion that we bring them here to appear. Counsel pointed out we only have one more meeting next week before the summer recess.
Senator Moore: I did not mean next week.
Mr. Albrecht: That is where the implication arose.
The Joint Chair (Senator Martin): I apologize for the confusion.
Mr. Szabo: How many other Fisheries and Oceans files do we have in the hopper?
Mr. Bernhardt: I estimate it is somewhere between 12 and 18.
Mr. Szabo: I want to recommend that in addition to writing to the minister with regard to this matter, we write specifically with regard to our relationship with Fisheries and Oceans, the number of files involved and give her an idea of the key dimensions with which we have difficulty.
We talked about the minister in this committee. I remember people saying it is a new minister. This has been years in the making. It would be useful to invest in the relationship by indicating we want to make arrangements for the minister to visit with the committee to have a discussion about how we can do our job better to earn the active support of Fisheries and Oceans to come to some resolutions. This may be an olive branch, but the minister must become engaged.
Senator Moore: Along that line, would it be appropriate for the joint chairs to meet with the minister to provide a history and ask how we can clean up these matters? We do not want to keep going back and forth being unproductive or not even receiving responses. It is one thing to write another letter. Why not sit down to lay out the 15 files that go back years and talk about how to get these things tidied up? Suggest she put someone on her staff on the matter or ask how to proceed.
Mr. Bernhardt: That could be done, either formally or informally.
Senator Moore: If I was a minister, that person would not be working for me. Not responding is quite discourteous; it simply shows no good faith.
Mr. Bernhardt: There are two issues, and Senator Moore identified one of them. The other, to which Mr. Szabo referred, is the issue of matters that have gone on and on that relate generally to problems in the Fisheries Act, although there have been repeated undertakings to address them. Since I have been working for this committee, several bills have been introduced to rewrite the Fisheries Act, but they have all floundered. Obviously, attempts have been made to resolve the issues the committee has run up against. However, it is not solely the matters before this committee but also the broader issue of a new Fisheries Act. I thought that was worth mentioning.
The Joint Chair (Mr. Kania): Are there other comments?
Mr. Armstrong: That is fine.
The Joint Chair (Mr. Kania): We will send either one long, detailed letter, or we will stay with the first recommendation to send a letter on this file indicating that we would like a satisfactory response by the first meeting or we will request witnesses to appear. Perhaps we could then have a substantive longer letter to advise the minister that a second letter is coming on a number of different files and that we would like to work with the minister to try to resolve matters. I am not saying it has to be one way or the other, but perhaps we should keep this file clean and advise the minister under separate letter in some detail that we have a number of concerns and perhaps request a meeting with her to resolve matters.
Mr. Albrecht: I am fine with that. In terms of a face-to-face meeting with the chairs and the minister, any one of us on the government side could have a conversation with her. I have not heard of this situation until now and, in deference to Mr. Szabo, she has not been there for years and years because she was elected only a year and a half ago. Let us try to develop the relationship.
The Joint Chair (Mr. Kania): Anyone can speak with her but I suggest that there be a letter from the Joint Chairs to the minister, and the vice-chairs are always copied. You will have a copy of the letter and if you wish to speak with her, it would be helpful.
Are members agreed?
Hon. Members: Agreed.
SOR/2007-135 — PHYTOPHTHORA RAMORUM COMPENSATION REGULATIONS
(For text of document, see Appendix C, p. 6C:1.)
Mr. Bernhardt: Back on April 29, the committee instructed counsel to write to the Food Inspection Agency pursuing two unresolved points. The agency was also to be advised that the instrument would be returned to the committee on June 10, i.e. this morning, and that they should strive to provide a reply by then. The June 7 reply was received after the materials for this morning were printed and distributed, so it was sent to members under separate cover, which I hope everyone received. We have extra copies if they are needed.
The letter promises amendments to resolve the two remaining matters. By way of follow-up, some indication as to the time frame could be sought. Otherwise, the reply would seem to be action promised.
I can also advise that the previously agreed to amendment to paragraph 24(a) of the regulations that they mention in their June 7 reply was published in the Canada Gazette yesterday. That has been made.
The Joint Chair (Mr. Kania): Are members happy?
Hon. Members: Agreed.
SOR/97-6 — FEEDS REGULATIONS, 1983, AMENDMENT
SOR/97-9 — SEEDS REGULATIONS, AMENDMENT
SOR/2001-274 — REGULATIONS AMENDING THE SEEDS REGULATIONS
(For text of document, see Appendix D, p. 6D:1.)
Mr. Bernhardt: The provisions in question put in place a regime whereby new feeds, or what the regulations call "novel feeds," cannot be released into the environment unless an authorization has been obtained from the Minister of Agriculture. The problem is that the purpose of the Feeds Act is to control and regulate manufacturing, selling or importing of feeds. The act does this by prohibiting manufacture, sale or import other than in accordance with the regulations. None of this necessarily has anything to do with release into the environment. In other words, release into the environment can include and encompass things other than manufacturing, importing and sale, such as research, for example. Obviously, regulation-making powers have to be exercised for the purposes of the enabling statute.
The regulations go even further. They purport to regulate release of a livestock product produced from a feed into the environment, as well as the exposure of a feed or a livestock product produced from a feed to the environment. These products encompass things like eggs, meat, milk, animal parts and manure. These products would have to be characterized as feeds in some way. This is clearly beyond the scope of the act. The Seeds Act is similar to the Feeds Act in structure and also has these provisions in its regulations, so the problem arises there as well.
Previously, the minister advised that a series of legislative options to resolve the issues was being explored. In his May 14 letter, the minister indicates that, although he makes no promises, the Feeds Act and the Seeds Act could be amended in a bill following the next review of the Canadian Environmental Protection Act.
My understanding is that the review of that act might not commence for some time. It seems obvious that any resulting bill will certainly be years away. In the meantime, the prohibitions and restrictions to which the committee objected in the regulations, which I suggest are clearly ultra vires, will remain in place.
I would add that it seems unlikely that a review of the Environmental Protection Act will result in amendments to the Feeds Act and the Seeds Act. The Environmental Protection Act already has the necessary authority to regulate release into the environment. That act was not used to put these regulations in place because Environment Canada, in the words of the Food Inspection Agency, "was seen to lack expertise and experience in the regulation of agricultural products."
If members feel this is not a satisfactory state of affairs, one possible option for consideration is to prepare a draft report to the Houses to draw the matter to the attention of the Houses and to recommend that this issue be resolved in a timely fashion.
The Joint Chair (Mr. Kania): Are there comments?
Mr. Albrecht: Certainly, all committee members want the issue resolved. This file is very thin, and I am not sure that I am in a position to sit in judgment on this issue. I do not feel I have enough information. Could we ask for more information? We should discuss it for a bit and try to resolve it in that way.
Mr. Szabo: This is not the whole file. We sent a fairly straightforward letter on December 1, 2009. Five months later, we received a two-sentence response, which is the middle paragraph informing us that they were exploring the potential of making these amendments but that they could not let us know what would happen. It should not have taken five months to write that letter. The committee faces this problem all the time. There is no respect for the work that we do, and yet the actions that we have the power to take are significant, right down to disallowances going to both Houses.
I deemed this letter dismissive in its tone, quite frankly. Five months did not advance this file. I want it flagged that I find it unacceptable when a letter from a minister basically says, "yeah, we know" without any commitment, action plan or assurances that it will move forward.
I would entertain some discussion about needing to deal with this issue, and we need a commitment. If it will take legislative amendments, we do not need a whole new bill. We are not waiting for a whole new bill, especially for CEPA, particularly since the amendments under Bill C-9 of non-budgetary items will eliminate the five-year review on the environmental assessment.
I would be inclined to say that we need a little bit more than "stay tuned." We would like the minister to give us a commitment that, should legislation not be forthcoming within the next X period of time, the minister will undertake to bring forward a bill of amendments to the act to make the necessary changes.
The Joint Chair (Mr. Kania): What about the "Parks Canada solution" which we have used now: "Please give us a satisfactory response by our first meeting; otherwise, we want witnesses at that first meeting to testify about this"? What do people think about that?
We will implement the "Parks Canada solution."
With that, Senator Martin will take over the balance of the meeting.
SI/2007-31 — RAINY RIVER FIRST NATIONS SETTLEMENT AGREEMENT REMISSION ORDER
(For text of document, see Appendix E, p. 6E:1.)
Mr. Bernhardt: This order remits goods and services tax in accordance with the terms of the settlement agreement between the Rainy River First Nations and Her Majesty the Queen in right of Canada and Her Majesty the Queen in right of Ontario.
Under the Financial Administration Act, the Governor-in-Council may remit taxes where she considers the collection of the tax is unreasonable or unjust, or when it is otherwise in the public interest. In this case, the agreement signed by Her Majesty in right of Canada binds Canada and therefore the Governor-in-Council with respect to the manner in which this discretionary power must be exercised. Therefore, when the Governor-in-Council acted in accordance with the agreement by issuing the remission order, she was in fact submitting to the dictates of the parties to the agreement.
As explained in the note that was prepared for members, however, the effect of such arrangements is that the discretion conferred by Parliament is at least in part exercised by the wrong authority; that is to say, the parties who sat down and came to the agreement. This leads to the possibility that the resulting action could be found to be ultra vires. In this case, this would mean the relevant provisions of the agreement with the First Nations, as well as the remission order, were not validly made.
In the December 1, 2009 letter, the Department of Finance recognized that it is a basic principle of administrative law that an authority that has a discretionary power must be free to decide how to exercise that discretion. The department argues that this principle is respected here because the agreement provided that the Governor-in-Council had to authorize the Minister of Indian and Northern Affairs to sign the agreement. It suggests that, when it authorized the minister to sign the agreement, the Governor-in-Council was also making a decision to issue the remission order.
The department seeks to rely on an Alberta Court of Queen's Bench decision, Western Canada Wilderness Committee v. Alberta (Provincial Treasurer) that is referred to in the note. The note also suggests that the situation in that case is quite different. In that case, there was a situation where there would be negative consequences to exercising the power, but the discretion to make that decision still remained.
In this instance, even if the Governor-in-Council decided to grant the remission order before authorizing the minister to sign the agreement, once that agreement was signed, the Governor-in-Council had no choice. She was not free to change her mind and she had to act in accordance with the agreement.
At the end of its response, the department indicates it is considering possible changes that could be made to the Financial Administration Act to clarify the authority of the Governor-in-Council to make remission orders and to clearly provide that such power can be exercised in accordance with an agreement signed between a regulatory authority and a third party. Such an amendment would satisfy the committee's concern here. Therefore, perhaps a firm commitment to amend the act in the manner described in the department's letter could be sought from the department.
The Joint Chair (Senator Martin): Are there any comments?
Mr. Lee: I just have a question. Which exact act would be ultra vires?
Mr. Bernhardt: In this case, I think the issuing of the remission order would be ultra vires. However, I think it would also call into question — and this does not fall under the committee's mandate — the validity of the provisions in the actual agreement whereby the Crown in right of Canada purported to bind the Governor-in-Council to make the remission. As a contractual provision, that would be unlawful, as well.
Mr. Lee: Our committee mandate would not reach into the agreement, would it?
Mr. Bernhardt: No, I do not think so.
Mr. Lee: It is not a regulation or statutory instrument.
Mr. Bernhardt: In essence, that would be a question of contract law.
Mr. Lee: That remission order or any other subsequently-issued remission order would be ultra vires because the discretion that should have been there was bound by the agreement; is that correct?
Mr. Bernhardt: Right. If the Governor-in-Council or the federal Crown or whoever contractually binds itself to exercise a discretionary power to make legislation, then the principle is that the exercise of that power becomes ultra vires because you have taken away the discretion.
The Joint Chair (Senator Martin): Are there any other comments? Do we all agree on what counsel has suggested; namely, writing a letter requesting a firm commitment to amend the act?
Hon. Members: Agreed.
SOR/2010-1 — ORDER REPEALING THE SCIENTIFIC OR TECHNICAL ASSISTANCE FEES ORDER (RESEARCH BRANCH — AGRICULTURE)
(For text of documents, see Appendix F, p. 6F:1.)
Evelyne Borkowski-Parent, Committee Counsel: The repeal of the above-mentioned order resolves a point of drafting noted in the case of SOR/94-789. The only comment with respect to this file is the delay encountered in having the instrument registered, which occurred three and half months after the repealing order was made. The department was initially informed in a letter that registration was to take place within seven days of the making of the repealing order, further to subsection 5(1) of the Statutory Instruments Act. The Department of Justice wrote back to the committee to inform it that the requirement to register regulations within a certain time frame is directory rather than mandatory and that consequently, failure to satisfy the requirement does not invalidate the regulations. It should be noted that no one has discounted this fact and that the letter of January 21, 2010, was not intended to argue that the regulations were invalid. The purpose of the letter was in fact to remind the department of its obligation to register statutory instruments. Since this reminder has been issued, if there are no objections, this file can be considered closed.
SOR/2003-393 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS
(For text of document, see Appendix G, p. 6G:1.)
Ms. Borkowski-Parent: This file deals with three points of drafting, pertaining to discrepancies between the English and French versions. The department made a somewhat convincing argument with regard to point number two. As for the remaining two concerns, to this day, three letters have been sent to the department in an effort to resolve the matter, to no avail.
The department seems to rely on a lengthy memorandum on the quality of the French version of the provisions, provided by the Department of Justice's Jurilinguistic Services. However, it fails to grasp the arguments actually put forward, which point to the need to clear the English version of some superfluous elements.
No real attempts to reply to counsel's suggestions have been made, and it appears as though the department seems to consistently miss the point.
In the normal course of matters, this file has reached a stage where we would generally recommend drafting a letter to the minister. Nevertheless, considering the nature of the points in question, the committee could alternatively decide to extend an offer for counsel to sit down with the department officials in the hope of reaching some kind of understanding.
Hon. Members: Agreed.
Senator Moore: When are you going to have this meeting? Is this something where you would like to meet and come back to us by the fall?
Mr. Bernhardt: Exactly.
SOR/97-61 — REGULATIONS PRESCRIBING A TERRITORY FOR THE PURPOSES OF THE DEFINITION "COUNTRY" IN THE CUSTOMS TARIFF
(For text of document, see Appendix H, p. 6H:1.)
Mr. Bernhardt: Again here, the issue revolves around an open incorporation by reference — yet another variation on the theme — this time under the authority to prescribe the territory of a country. Section 1 of the regulation states:
The territory where the customs laws of Israel are applied in accordance with . . . the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip . . . as . . . amended from time to time, is a prescribed territory for the purposes of the definition "country" in . . . the Customs Tariff.
Of course, the incorporation by reference of this agreement, "as . . . amended from time to time" means that if the document is amended after the regulations are made, the territory would not be designated by the Governor-in-Council in the regulations, but would be determined in the document that is written by someone else.
However, here both the old Customs Tariff, under which this provision was actually made, and the current tariff contain a definition of "prescribed" that is broad enough to permit open incorporation by reference because the definition permits the Governor-in-Council to either prescribe the territory of a country or prescribe rules for determining the territory.
The problem here is that it is not entirely clear that the definition of "prescribe" applies in the case of this particular provision. The definition of "country" does not refer to prescribed territory, as you would expect, but territory prescribed by regulation.
If it had used the former wording, the Governor-in-Council would clearly have the authority to either prescribe the territory or simply set rules for determining how the territory would be defined. By using an alternative wording, the question arises as to whether Parliament wanted to delegate to the Governor-in-Council only the power to actually prescribe the territory and not to set rules more generally. Because different words were used, there is a presumption that Parliament intended different things.
On the other hand, here in the context, you could reach the conclusion that it is nothing more than careless drafting, that it is simply a somewhat sloppy and inconsistent use of words.
The department asserts that the open incorporation by reference in this instance is valid. It refers to the government response to the committee's report on the subject, and again expresses a desire to wait for the proposed legislation addressing the issue generally.
Here, however, it is unlikely that any general legislation would resolve the particular question, which is simply whatever the general rules for incorporation by reference may be, there are particular circumstances here that lead to a conclusion that while you can generally have an open incorporation by reference in regulations under the tariff, a more specific rule has been put in place in this case, and it is somewhat different.
It would be very easy to remove the uncertainty. You would simply replace the words "territory prescribed by regulations" with "prescribed territory" in the definition of "country" in the tariff. In French, that would be "territoire réglementaire designé."
There is already an agreement to amend the act to remove a discrepancy between the English and French versions, which was noted in subsection 52(2) in the course of reviewing these regulations. That is the part action that is being promised. Perhaps an undertaking to make this additional amendment at the same time could be sought, since they will be doing one amendment to the act anyway, simply to remove any doubt on this point.
The Joint Chair (Senator Martin): Are there any comments? Is it agreed?
Hon. Members: Agreed.
SOR/2007-86 — REGULATIONS FOR THE PREVENTION OF POLLUTION FROM SHIPS AND FOR DANGEROUS CHEMICALS
(For text of document, see Appendix I, p. 6I:1.)
Ms. Borkowski-Parent: The initial letter raised 61 points of concern, of which 2 were given a satisfactory answer by the department and 52 are going to be addressed by amendments. A letter was drafted following the committee's October 22 meeting in order to pursue the remaining points.
In its February 12, 2010 letter, the department promised action on 6 of the outstanding questions and provided a satisfactory answer with regard to point 60. If members agree, a letter could be drafted seeking an update on the 58 promised amendments.
Hon. Members: Agreed.
SI/2009-104 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN NUNAVUT (NORTHERN BATHURST ISLAND NATIONAL PARK) ORDER
(For text of documents, see Appendix J, p. 6J:1.)
Ms. Borkowski-Parent: In its letter of November 26, 2009, counsel for the committee questioned whether there was a difference between "ordinary high water mark" and "laisse de haute mer." The explanations provided by the department were deemed to be satisfactory. Therefore, this file can be considered closed.
The Joint Chair (Senator Martin): Is it agreed?
Hon. Members: Agreed.
SOR/2007-171 — REGULATIONS AMENDING THE PORT AUTHORITIES OPERATIONS REGULATIONS
(For text of document, see Appendix K, p. 6K:1.)
Ms. Borkowski-Parent: Subsection 31.1(4) of these regulations appears to erroneously suggest that the minister enjoys the power to amend the regulations himself. The purpose of subsection 31.1(4) is to provide for the review of paragraph 2(b) within two years of the coming into force of the regulations. The department promised to amend subsection 31.1(4) following the mandated review of paragraph 2(b) if the latter was determined to require an amendment.
More than two years have now elapsed since the coming into force of the regulations, and the department indicated it would not pursue any amendment to paragraph 2(b) as a result of the mandated review. Therefore, as subsection 31.1(4) is now spent and will be repealed as part of a potential future regulatory initiative, this file could perhaps be closed.
Hon. Members: Agreed.
SOR/2001-401 — MINORITY INVESTMENT (BANK HOLDING COMPANIES) REGULATIONS
SOR/2001-405 — MINORITY INVESTMENT (INSURANCE HOLDING COMPANIES) REGULATIONS
SOR/2001-480 — SUPERVISORY INFORMATION (BANK HOLDING COMPANIES) REGULATIONS
SOR/2001-484 — SUPERVISORY INFORMATION (INSURANCE HOLDING COMPANIES) REGULATIONS
(For text of documents, see Appendix L, p. 6L:1.)
Mr. Bernhardt: When these files were considered by the committee in March, members expressed dissatisfaction at the delay in completing the promised amendments. Counsel was instructed to seek a firm date by which the amendments will be made and to advise the Office of the Superintendent of Financial Institutions that in the absence of a satisfactorily concrete undertaking, the committee would consider whether to request the appearance of officials.
The reply indicates that the other amendments, to which certain of those requested by the committee had been attached, are no longer proceeding. Therefore, all of the amendments promised to the committee have once again been grouped together and will be made by a miscellaneous amendments regulation that is to be published in the fall.
If this is satisfactory for now, the file will come back to the committee in the fall should these amendments still not have been made.
Hon. Members: Agreed.
WEIGHTS AND MEASURES SPECIFICATIONS, SGM-1
WEIGHTS AND MEASURES SPECIFICATIONS, SGM-3
WEIGHTS AND MEASURES SPECIFICATIONS, SGM-7
(For text of documents, see Appendix M, p. 6M:1.)
Ms. Borkowski-Parent: These files gave rise to a number of points of drafting. The department was originally going to proceed with the required amendments following a review of the standards on electronic weighing devices by the relevant international body. Since this review has been delayed, the department opted to amend the regulations separately.
In the case of SGM-1 and SGM-3, it has been decided to incorporate their content in Division VI of Part V of the Weights and Measures regulations. These amendments are currently being drafted by the Department of Justice and their registration is expected for the 2010-11 fiscal year.
Regarding SGM-7, the department is currently reviewing the comments arising from the pre-publication in Part I of the Canada Gazette on June 21, 2008. It is expected that the regulations will be registered and published in Part II of the Canada Gazette before the end of the 2010-11 fiscal year. If this course is acceptable, progress could be monitored as per usual.
Hon. Members: Agreed.
SOR/98-166 — REGULATIONS AMENDING THE PATENTED MEDICINES (NOTICE OF COMPLIANCE) REGULATIONS
(For text of document, see Appendix N, p. 6N:1.)
Mr. Bernhardt: This is the file on which we received the last minute letter that the chair referred to at the last meeting. On May 13, there was a letter before the committee from the Department of Industry agreeing to make required amendments as soon as possible, which was estimated to be within six months. At that point, it was determined that witnesses would not be required.
The department also undertook to provide a more precise indication prior to the meeting two weeks ago. The chair advised at that time that the reply was received late the day before the meeting, so it was not possible to have the letter translated.
Therefore, it is before the committee today. Their reply indicates that the amendments in question should be made in the fall. Assuming that is acceptable, the file will be brought forward at that time.
Hon. Members: Agreed.
Senator Moore: This says "to bring into force." Is that not actually prepared and brought into force?
Mr. Bernhardt: Exactly.
SOR/2002-148 — REGULATIONS DESIGNATING PERSONS AND CATEGORIES OF PERSONS OTHER THAN TRAVELLERS DESTINED FOR THE UNITED STATES WHO MAY ENTER A PRECLEARANCE AREA
(For text of documents, see Appendix O, p. 6O:1.)
Ms. Borkowski-Parent: This file deals with the authority of the Governor in Council to designate the persons or categories of persons who may enter a preclearance area.
The regulations in question went much further by setting out the conditions that certain persons had to meet in order to enter a preclearance zone. There is no provision in the enabling legislation for granting this albeit limited authority to set such conditions.
The department advised the committee in its letter of January 18, 2010 that following the independent five-year review of the Preclearance Act, it was determined that the regulations in question required updating.
Until the updating is done, the department has decided to repeal the contentious words from the regulations. The committee could send a letter to the department to enquire as to when the amendment can be expected.
Hon. Members: Agreed.
C.R.C. c. 1238 — NORTHWEST TERRITORIES REINDEER REGULATIONS
(For text of document, see Appendix P, p. 6P:1.)
Mr. Bernhardt: Obviously, this is one of the committee's longest outstanding files. Proposed amendments to the regulations have been approved by the Department of Justice Canada. They were to proceed once an order-in-council containing a proper description of the Northwest Territories reindeer reserve was in place. This required the completion of an accurate survey description. Then the French versions of the Gwich'in and Inuvialuit land claims agreements would also have to be corrected.
In early 2008, it appeared that the survey description had been completed. There was a forecast date for making the amendments to the regulations at the end of February 2009. That date was pushed back to December 2009 and most recently to September 2010. This was said to be due to ongoing difficulties concerning the replacement of the order-in-council setting out the area of the reserve. Apparently, the surveying initiative had some complications.
However, the new order setting out the revised boundaries of the reserve was published on March 17. Hopefully, this latest forecast of September 2010 will be met. If not, the file will be back before the committee in the fall.
Hon. Members: Agreed.
The Joint Chair (Mr. Kania): In terms of the "Parks Canada solution" that we indicated for two matters before us — Basin Head Marine Protected Area Regulations and the Feeds Regulations — I wanted to confirm, similarly to what we did before, the committee's hopeful agreement that the joint chairs, in consultation with counsel, will determine whether we have received a satisfactory response, thus determining whether the witnesses have to appear at the first meeting. Is that agreed?
Hon. Members: Agreed.
SOR/88-58 — AIR TRANSPORTATION REGULATIONS
(For text of document, see Appendix Q, p. 6Q:1.)
Ms. Borkowski-Parent: Eighty-two points were originally raised with regard to this file. In 2007, the agency aimed for a publication in 2008. Further delays have occurred in the course of drafting these amendments. It is now the position of the agency that these amendments will be divided. Some of the components are expected to be pre-published in fiscal year 2010-11.
If this course is acceptable, a letter could be drafted to the agency asking them to confirm that the 2010-11 time frame will be met and when the other amendments are expected to proceed.
Hon. Members: Agreed.
SOR/95-189 — NOVA SCOTIA OFFSHORE AREA PETROLEUM DIVING REGULATIONS
(For text of document, see Appendix R, p. 6R:1.)
Mr. Bernhardt: While the department's June 24, 2009, letter seemed to indicate that promised amendments had been pre-published, this proved not to be the case. The August 2009 letter clarifies that, in fact, these regulations are to be completely restructured with a forecast completion date of 2012. This is part of an overall replacement of regulations dealing with oil and gas operations.
The first phase of this was recently completed. It is obviously a large undertaking. I suspect that recent events may have added to the scope and significance of this undertaking. Nevertheless, work seems to be ongoing. Perhaps at this point, a request for a progress report would be sufficient.
Hon. Members: Agreed.
SOR/2002-352 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I, VI AND VIII)
(For text of document, see Appendix S, p. 6S:1.)
Ms. Borkowski-Parent: This file deals with the enabling power behind paragraph 801.09(3)(b), which provides that a copy of the training record of any person acting as a flight service specialist at a flight service station must be provided to the minister on request.
The issue was whether the different regulation-making powers encompassed in the act were broad enough to allow for this provision, considering that traditionally, the obligation to submit records cannot be said to flow from the obligation to keep the records.
In November, the committee took the view that paragraph 801.09(3)(b) was implicitly authorized by sections 8.7 — powers to enter, seize and detain — and 8.8 — duty to assist the minister — of the Aeronautics Act. Nonetheless, it expressed the desire to see the act amended so it provided expressly for the power to request the submission of records or that this power be delegated expressly to the Governor-in-Council.
In its January 26, 2010 letter, the department mentioned it would consider the committee's comments in its next review of the Aeronautics Act. A letter could be drafted asking if such a review is planned and, if so, when it can be expected to come to completion.
Mr. Szabo: Again, there is no certitude of any action. We will bounce it back and forth one more time to see whether they have done anything. I am getting a little —
An Hon. Member: Distressed?
Mr. Szabo: Let me say that if every file went like this, it would not be a good situation. Has counsel a suggestion on how we might receive some assurances? It is not simply let us know if you decided to do it. We need to resolve the matter. Our response should be stronger.
I think we should do a time and motion study on how much it costs to write a letter. Thousands of dollars have been spent and nothing has been advanced. If we have thousands of files, it is simply not good business practice. This is not being fiscally responsible. Pleasantries are nice but if they get us another response like this one, we have not done our job.
Mr. Bernhardt: The problem on this file is that the committee has accepted that there is an implicit authority to make the provisions of the regulations in question. The committee has agreed that implicitly these regulations are valid. Nevertheless, it expressed the view that it would be desirable to have an express power rather than an implicit power. That might colour the degree of patience, shall I say, that the committee may wish to exercise. The committee has accepted that the regulations are authorized. We are looking for a little more clarity in the act.
Mr. Szabo: I raise the other point that if this is no big deal, then perhaps we need another approach to deal with matters that are no big deal. I would rather concentrate on things that require our decision. We have to consider whether these matters might not fit the criteria on which the committee wishes to focus its attention.
Mr. Bernhardt: The question for the committee is: The committee has accepted that the regulations are valid and has expressed a preference to have an express power in the act. How, if at all, does it wish to follow up on that preferential request? That is a legitimate question in this case.
The Joint Chair (Mr. Kania): I agree with Mr. Szabo. For clarification, as I have discussed with counsel, when in doubt, bring it before the committee. I would rather see it before making the determination as suggested by Mr. Szabo.
The Joint Chair (Senator Martin): At this time, we will take counsel's suggestion to write another letter?
Hon. Members: Agreed.
SOR/2008-116 — LOBBYISTS REGISTRATION REGULATIONS
(For text of document, see Appendix T, p. 6T:1.)
Mr. Bernhardt: Two clarifying amendments and an amendment to resolve a discrepancy between the English and French versions were sought following the committee's consideration of these regulations. The reply from Treasury Board is that the committee's concerns have been noted for possible future correction. It is also suggested that the five-year review of the Lobbying Act might provide an opportunity to review the regulations. This seems a bit vague. Perhaps an assurance should be sought that the amendments will be made within a reasonable period of time. It is up to the Treasury Board which vehicle it wishes to adopt to do that, whether it is a broader review of the act or a specific series of amendments.
Mr. Szabo: The five-year review is legislative. It will come to the Access to Information, Privacy and Ethics Committee, which has the Lobbying Act in its mandate under the standing orders. The Lobbying Commissioner is reportable through that committee along with the Privacy and Ethics Commissioners. Being chair of that committee I can say it faces a long process. By the time we get started, it might take five years to do the five-year review. I would not rely on the review committee, it could take a year before we could arrange all the matters vis-à-vis witnesses. As well, lobbying activities are highly topical.
Senator Harb: — and toxic.
Mr. Szabo: I would not rely on the five-year review for a solution or let Treasury Board use it as an out.
The Joint Chair (Senator Martin): Are there comments?
An Hon. Member: No.
Mr. Bernhardt: If members so wish, I could follow our traditional practice and deal with items under Action Promised, Action Taken, and Statutory Instruments Without Comment as a group.
Hon. Members: Agreed.
SOR/2003-314 — REGULATIONS AMENDING THE ATLANTIC FISHERY REGULATIONS, 1985
(For text of document, see Appendix U, p. 6U:1.)
SOR/2006-209 — REGULATIONS AMENDING THE FISHERY (GENERAL) REGULATIONS
(For text of document, see Appendix V, p. 6V:1.)
Mr. Bernhardt: Under Action Promised, one amendment is promised in connection with each of the two instruments listed. Progress of these will be monitored and followed up in the usual fashion.
SOR/2009-326 — REGULATIONS AMENDING AND REPEALING CERTAIN REGULATIONS MADE UNDER THE PLANT PROTECTION ACT (MISCELLANEOUS PROGRAM)
(For text of document, see Appendix W, p. 6W:1.)
SOR/2010-59 — REGULATIONS AMENDING THE GOVERNMENT AIRPORT CONCESSION OPERATIONS REGULATIONS
(For text of document, see Appendix X, p. 6X:1.)
Mr. Bernhardt: The two instruments under Action Taken in combination resolve 17 concerns as detailed in the covering notes prepared for members.
SI/2010-3 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE MARJORY LEBRETON AND THE HONOURABLE PETER GORDON MACKAY
SI/2010-4 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE KEITH ASHFIELD AND ASSIGNING THE HONOURABLE KEITH ASHFIELD TO ASSIST THE MINISTER OF TRANSPORT
SI/2010-5 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE DIANE ABLONCZY AND ASSIGNING THE HONOURABLE DIANE ABLONCZY TO ASSIST THE MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT
SI/2010-6 — ORDER ASSIGNING THE HONOURABLE ROB MOORE TO ASSIST THE MINISTER OF INDUSTRY
SOR/2009-256 — REGULATIONS AMENDING THE DISPOSAL AT SEA REGULATIONS
SOR/2009-266 — REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS (MISCELLANEOUS PROGRAM)
SOR/2009-270 — RULES AMENDING THE BANKRUPTCY AND INSOLVENCY GENERAL RULES (MISCELLANEOUS PROGRAM)
SOR/2009-272 — REGULATIONS AMENDING THE GREAT LAKES PILOTAGE TARIFF REGULATIONS
SOR/2009-273 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT
SOR/2009-274 — ORDER AMENDING SCHEDULE I.1 TO THE FINANCIAL ADMINISTRATION ACT
SOR/2009-275 — ORDER AMENDING PART III OF SCHEDULE VI TO THE FINANCIAL ADMINISTRATION ACT
SOR/2009-277 — ORDER DESIGNATING ONTARIO FOR THE PURPOSES OF THE CRIMINAL INTEREST RATE PROVISIONS OF THE CRIMINAL CODE
SOR/2009-278 — ORDER DESIGNATING BRITISH COLUMBIA FOR THE PURPOSES OF THE CRIMINAL INTEREST RATE PROVISIONS OF THE CRIMINAL CODE
SOR/2009-279 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1591 — SCHEDULE F)
SOR/2009-281 — ORDER AMENDING SCHEDULE 1 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT, NO. 2009-1
SOR/2009-282 — ORDER AMENDING SCHEDULE 2 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT (2009-2)
SOR/2009-283 — ORDER AMENDING SCHEDULE 2 TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT, NO. 2009-1
SOR/2009-284 — ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS FISCAL AND STATISTICAL MANAGEMENT ACT
SOR/2009-285 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
SOR/2009-287 — REGULATIONS AMENDING THE LETTER MAIL REGULATIONS
SOR/2009-288 — REGULATIONS AMENDING THE INTERNATIONAL LETTER-POST ITEMS REGULATIONS
SOR/2009-289 — REGULATIONS AMENDING THE SPECIAL SERVICES AND FEES REGULATIONS
SOR/2009-293 — REGULATIONS AMENDING THE CATSA AERODROME DESIGNATION REGULATIONS
SOR/2009-295 — REGULATIONS AMENDING THE INTRODUCED FOREST PEST COMPENSATION REGULATIONS
SOR/2009-300 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
SOR/2009-305 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1594 — SCHEDULE F)
SOR/2009-311 — ORDER AMENDING THE BRITISH COLUMBIA VEGETABLE MARKETING LEVIES ORDER
SOR/2009-325 — REGULATIONS AMENDING THE PACIFIC PILOTAGE TARIFF REGULATIONS
SOR/2009-332 — ORDER AMENDING SCHEDULE 2 TO THE OLYMPIC AND PARALYMPIC MARKS ACT
SOR/2009-333 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996
SOR/2009-336 — G8 SUMMIT PRIVILEGES AND IMMUNITIES ORDER, 2010
SOR/2009-337 — ORDER 2008-66-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2010-2 — ORDER AMENDING THE CANADIAN CHICKEN MARKETING LEVIES ORDER
SOR/2010-3 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
SOR/2010-7 — ORDER AMENDING THE CANADIAN EGG MARKETING LEVIES ORDER
SOR/2010-8 — ORDER AMENDING THE CANADA TURKEY MARKETING PRODUCERS LEVY ORDER
SOR/2010-9 — ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (AHOUSAHT)
Mr. Bernhardt: Under Statutory Instruments Without Comment, 37 instruments have been reviewed by counsel and found to comply with all of the committee's criteria.
Hon. Members: Agreed.
The Joint Chair (Senator Martin): Thank you.
The Joint Chair (Mr. Kania): The only thing we need is to discuss next week's meeting. I spoke with counsel today, and he indicated that, on an objective basis, it would be his preference to have a meeting next Thursday. I suggest we meet, provided we have quorum. Perhaps next week will be the last sitting before the summer recess.
Senator Harb: That might be so for you but hard-working senators will be here.
The Joint Chair (Mr. Kania): As this is non-partisan, I will smile and not respond. Are members agreed to proceed with the meeting next week?
Hon. Members: Agreed.
(The committee adjourned.)