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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 33 - Evidence - March 29, 2018
OTTAWA, Thursday, March 29, 2018
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m., in public and in camera, for the review of Statutory Instruments.
Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.
The Joint Chair (Senator Day): Welcome, everyone. This morning, we are going to start in camera, so those who are not members or staff of members should stretch their legs for a short while.
It is moved that the committee now proceed to sit in camera and, that notwithstanding usual practice, committee members’ assistants be allowed to remain, that the committee allow the transcription of today’s in camera meeting and that one copy be kept in the office of general counsel for consideration and for consultation by committee members.
All those in favour? Contrary minded? Motion carried.
(The committee continued in camera.)
(The committee resumed in public.)
The Joint Chair (Mr. Albrecht): We’re going to move on with agenda Item 2. We have a number of issues to deal with on this particular file, so we’ll look to our general counsel for her input.
SOR/2017-10 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT
SOR/2017-59 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT
SOR/2017-112 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT
(For text of documents, see Appendix A, p. 33A:1.)
SOR/2017-229 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT
SOR/2018-10 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT
Penny Becklumb, Counsel to the Committee: Item 2 relates to three orders amending Schedule 1 to the Species at Risk Act. Item 4 relates to two more of the exact same type of order, and since the same issues arise in relation to all five of the orders that we reviewed, I’d like to discuss items 2 and 4 at the same time.
First, I will review some terminology. SARA is short form for the Species at Risk Act. The term “species at risk” refers collectively to species that have been assessed to be at any one of four levels of risk: extirpated, endangered, threatened or species of special concern. All of these risk levels are defined in SARA.
The purpose of SARA is to prevent species at risk from becoming extinct and also to provide a process for the recovery of species at risk.
I’d like to take a minute to walk you through the process set out in SARA. It’s presented in an infographic that we prepared. It’s in your notes on page 3. It sets out the eight steps of the SARA process. The issues I’m about to discuss relate to the first three steps.
The first step is the assessment by COSEWIC, or the Committee on the Status of Endangered Wildlife in Canada. It is an independent committee of scientific experts that assesses the status of a species and then provides that assessment to the minister.
COSEWIC also includes the assessment in the SARA registry, which is an Internet site available to the public.
Under step 2, the minister has 90 days to include in the public registry a report on how the minister intends to respond to the assessment and, to the extent possible, provides timelines for action.
At step 3, the Governor-in-Council decides whether to add a species to the list of wildlife species at risk or whether to refer an assessment back to COSEWIC for more information and consideration. This decision is significant because a species will only receive protection under SARA if it is on the list.
The list is set out directly in Schedule 1 of the act as opposed to being in a regulation. Accordingly, SARA includes a Henry VIII clause that authorizes the Governor-in-Council to issue an order adding a species to the list, removing a species from the list or reclassifying a species on the list to a different risk level. For example, the Governor-in-Council could issue an order moving a species from threatened to endangered.
The Governor-in-Council’s listing decision is based on a recommendation from the minister, and like every other step in the SARA process, it is time limited. Specifically, the Governor-in-Council has nine months after receiving an assessment to make a listing decision.
Steps 4 to 7 relate to planning, implementing and monitoring protective measures for the species on the list. Then at step 8, COSEWIC reassesses the status of a species, and we go back to the start of the process again, where COSEWIC provides an assessment to the minister.
For Items 2 to 4 on your agenda, we reviewed five orders of the Governor-in-Council that added a total of 56 new species to the list, and the same two issues arose in respect to all five orders.
The first issue is that at step 2 of the process it appears the minister is routinely exceeding the 90-day time limit to report on how the minister intends to respond to the assessment. The second issue relates to step 3 of the process, where the Governor-in-Council is taking years, typically five to six years, to decide whether to add a species to the list, despite the fact that SARA sets a nine-month time limit for these decisions to be made after the Governor-in-Council receives an assessment.
I would like to take a moment to elaborate on each of these two issues.
The first issue is the 90-day time limit for the minister to respond to an assessment. For the three orders reviewed under item 2 of your agenda, representing 27 species added to the list — actually, all of this is set out in a table. In your materials, we included a table. It’s behind Items 2 and 3, and it has all of the species listed and all of the timelines for every step taken.
For the 27 species under Item 2, it took the minister an average of 10 months to respond to an assessment after the assessment was completed. For the two subsequent orders under Item 4, representing 29 species added to the list, it took on average just over a year to respond to the assessment.
Counsel asked the department for an explanation for these apparent delays, and the department replied in a letter dated December 22, 2017, that the minister receives assessments by way of the COSEWIC annual report that is typically presented every fall. If the annual report marks the start of the 90-day time period, then the minister almost always meets the deadline for providing the response. However, the act doesn’t say that the 90 days start running when COSEWIC provides an annual report.
Under subsection 25(3) of the act, the 90 days start to run upon the minister “receiving a copy of an assessment of the status of a wildlife species from COSEWIC under subsection (1),” and subsection (1) requires COSEWIC to provide an assessment to the minister “when COSEWIC completes an assessment of the status of a wildlife species.” COSEWIC’s annual report requirement is in section 26. It’s a separate and distinct requirement. So it appears that the current practice of starting the 90-day clock with the annual report is not consistent with section 25 of SARA.
The second issue I’d like to discuss relates to step 3 of the process, specifically the time taken for the Governor-in-Council to decide whether to add a species to the list.
Section 27 of SARA provides for the Governor-in-Council to make a decision within nine months of receiving a copy of the assessment. If the Governor-in-Council fails to make a decision in these nine months, then under subsection 27(3), the minister is required to make an order amending the list in accordance with the recommendation from COSEWIC.
This structure is rare in law. Usually, if the Governor-in-Council doesn’t make a decision about something, nothing happens. But under SARA, if the Governor-in-Council doesn’t make a decision, something does happen. It moves ahead regardless.
An issue arises because while this nine-month timeline starts to run when the Governor-in-Council receives a copy of the assessment, there is no requirement in SARA that any person provide a copy of the assessment to the Governor-in-Council. So the nine-month timeline is not automatically triggered.
In practice, after COSEWIC has finished assessing the status of a species and provided a copy of the assessment to the minister, the assessment is posted on the Internet so it’s available to the public, but the department maintains that the Governor-in-Council still hasn’t received it.
In the absence of a statutory requirement for anyone to provide the assessment to the Governor-in-Council, the minister forwards a copy of the assessment to the Governor-in-Council at a time that the minister determines.
Typically, it takes them years after the minister has received an assessment for the minister to forward it to the Governor-in-Council, and then the Governor-in-Council issues an order acknowledging receipt of the assessment, which the department maintains triggers that nine-month time period.
This practice of starting the nine-month timeline by an order made at a time that the minister chooses is not set out in SARA. We asked the department under what authority these orders acknowledging receipt are made and the response was that they’re made under section 14 of the Statutory Instruments Regulations.
That provision is included in your notes so that you can read it for yourself. It doesn’t authorize making any order. Rather, section 14 of the Statutory Instruments Regulations is a provision of general application. It authorizes the Clerk of the Privy Council to publish a statutory instrument that is of public interest in the Canada Gazette.
In fact, there is no specific authority in SARA requiring the Governor-in-Council to issue an order acknowledging receipt of an assessment which starts the nine-month clock. There is no provision at all in SARA that starts the nine-month clock, and SARA is defective for just this reason.
The committee already reached this conclusion 10 years ago, in 2008. This morning we circulated a copy of that report from 10 years ago. It looks like this and it says “Third Report: Report No. 81 — Species at Risk Act.” This is the report that you tabled 10 years ago that says that the Species at Risk Act is defective.
I’ll read a quote from the report.
The Committee has . . . concluded that the failure to provide for the delivery to, and the receipt of, an assessment by the Governor in Council reflects an unintended gap in the scheme established by the Act.
At the time that this committee presented its report, a statutory review of SARA was about to begin. Accordingly, the report recommends that the Senate and House of Commons Environment Committees that were to examine the matter should recommend an amendment to SARA:
. . . to ensure that Parliament’s intent that action on an assessment be taken within a fixed period of time be clearly reflected in the Act.
However, following this report, no action was taken to address the defect in SARA. The Standing Senate Committee on Energy, the Environment and Natural Resources did not undertake a study of the Act. The House of Commons Standing Committee on Environment and Sustainable Development did review SARA, but they never presented a report to Parliament. So no recommendation to fix SARA was made to Parliament and the defect in the act from 2008 still exists.
So what is the impact of this defect in practice? Well, because there is no statutory start to the nine-month timeline, listing decisions takes a lot longer than nine months. If you refer to the table, you’ll see all the species there. For the three orders reviewed under Item 2, representing 27 species, the average time between the end of an assessment and a listing decision was six-and-a-half years. The shortest time was four years, nine months, and the longest was 12 years, 11 months.
For the two orders reviewed under Item 4, representing 29 species, the average time between the end of an assessment and a listing decision was five years, the shortest time was three years and the longest time was seven years, seven months.
The primary reason for these lengthy delays was discussed in 2008 testimony. It’s due to consultations with provincial and territorial governments, Indigenous peoples, wildlife management boards and stakeholders.
But the long delays are not consistent with Parliament’s intent when it enacted SARA. In 2008, this committee concluded that Parliament intended that action be taken within a fixed period of time — nine months.
The delays also have an effect in real life. I’m going to read you a quote from Dr. Jeffrey Hutchings. He was the Chair of COSEWIC when he appeared before the House of Commons Standing Committee on Environment and Sustainable Development in 2008 testifying during the statutory review of SARA. He said:
Delays in the species listing process negatively affect COSEWIC’s ability to fulfill its obligation to base its assessments on the “best available information on the biological status of a species . . . .” The longer the delay in reaching a listing decision, the greater is the likelihood that new information will be made available that might influence species status. Thus, the longer the listing-decision time frame, the greater is the likelihood that a species assessment will be referred back to COSEWIC, a decision that would further prolong the listing process and increasingly postpone the development of recovery strategies and habitat protection measures.
So for the next step, before making a decision on how to proceed you may want to listen to Item 3 on the agenda, because it also relates to the Species at Risk Act. You may want to hear all of the issues before deciding how to deal with each one.
SOR/2016-281 — CRITICAL HABITAT OF THE ROSEATE TERN (STERNA DOUGALLII) ORDER
(For text of documents, see Appendix B, p. 33B:1)
The Joint Chair (Mr. Albrecht): I’m going to suggest we would want to hear your report on Item 3 so we have the total package and get into discussion on all three at one time. Let’s move forward with that.
Evelyne Borkowski-Parent, General Counsel to the Committee: So still in relation to the Species at Risk Act, agenda Item 3 deals with the protection of critical habitats. By way of background, I will start by clarifying, for the purpose of the act, that the competent minister and the Minister of Environment are responsible for land species and that the Minister of Fisheries and Oceans is responsible for aquatic species. If a wildlife species is listed as an extirpated species, an endangered species or a threatened species, the competent minister must prepare a recovery strategy and then an action plan based on the recovery strategy. Those two documents must be included in the registry. Those are steps five to seven of the diagram mentioned earlier.
Listing a species triggers another process, the protection of critical habitat, as per section 56 and subsequent sections of the act. The critical habitat protection can be simply summarized by the provision on purpose under section 57 of the act, which I will summarize as follows: the purpose of section 58 is to ensure that, within 180 days after the recovery strategy or action plan is included in the registry, all of the critical habitat is protected by either provisions in this act, or the application of subsection 58(1).
It is important to stress that, contrary to the vast majority of statutory provisions, section 57 clearly defines the intent of section 58, meaning that, one way or another, the critical habitat must be protected within 180 days after a recovery strategy or action plan is included in the registry. It’s an obligation of results, if it is one. The critical habitat protection is automatically implemented on federal lands, but requires an order by the competent minister for other lands. Under subsection 58(5), the competent minister must make the order within 180 days after the registry inclusion, or he or she must include a statement setting out how the critical habitat is legally protected.
The order made by the minister then triggers the prohibition in subsection 58(1), subject to which any person who destroys any part of the critical habitat of any wildlife species is subject to a criminal sanction. In the case before us, the recovery strategy for the Roseate Tern was included in the species at risk public registry in October 2006. It took the Minister of Environment 10 years instead of 180 days before the order set out in subsection 58(5) was made.
At its meeting of May 11, 2017, the committee delegated the joint chairs to notify the two ministers — the Minister of Fisheries and Oceans and the Minister of Environment — that the committees expect the timelines set out in the act to be met in the future.
The Minister of the Environment’s reply is in the documents circulated for Item 3. In her letter, the minister provided a number of reasons to explain the delay, most of which seem to be related to the department’s lack of resources to manage competing demands. The letter also refers to the department’s measures to protect woodland caribou and the western chorus frog. The mention of those species is not by chance, since they have been subject to litigation in court in recent years.
I would like to bring to the committee’s attention the fact that it had occasion to examine the response from the Minister of Fisheries and Oceans at the February 15 meeting. That letter stated that while the new procedures implemented by the department in order to meet the statutory requirements would not help the backlog of species where the 180-day deadline was already passed, moving forward, “We anticipate that these procedures will ensure that statutory requirements under the Species at Risk Act and the Statutory Instruments Act are adhered to for future critical habitat orders of species whose recovery strategies or action plans identifying critical habitat are posted on the public registry from this date onwards.”
That was a much firmer commitment than what was provided by the Department of Environment that they’ll follow the word of the law “based on priorities, capacity and resources available.”
There have been several discussions over the past few meetings on how the executive should not ignore the letter of the law because it suits its needs. This example is a particularly striking one because section 57 imposes obligations of result, not of means or performance, on the minister. So to say that this obligation is subservient to the internal capacity of the department, while no doubt true in practice, is incorrect in law.
Furthermore, the letter hints at the fact that there is possibly a backlog of orders to be made. After cursory research, I can provide the following information.
There are currently 572 species listed in Schedule 1 of SARA. I can’t tell you how many of these would fall within provincial jurisdiction. So there are a number of them that would not fall within the federal jurisdiction. That said, there have only been 15 orders made at the federal level, 13 made by Fisheries and Oceans, one made jointly by the Minister of Fisheries and Oceans and the Minister of Environment, and only one by the Minister of Environment. So, when removing the provincial species, the backlog could potentially be significant.
In order for us to examine these orders in the future, counsel needs to know what this backlog entails so that we know how to deal with them when they come along. I suggest that this information concerning the number of backlogged orders could be asked for from each of the departments.
I’m going to quote the Federal Court of Appeal: “when Parliament adopted section 58 of SARA, its intent was to provide for compulsory and non-discretionary legal protection.”
So SARA, especially section 56 and so on, is not an aspirational goal. It’s a binding legal requirement that applies to the executive, as well as to the rest of us, in accordance with the fundamental principle of the rule of law, which is one of the things this committee has the mandate to oversee when the executive acts by way of delegated legislation. That sums up Item 3.
If I were to summarize agenda Items 2, 3 and 4, for Item 2, there is the question of when the clock starts running on the 90-day deadline for the minister to provide a response to an assessment. Right now, the department makes that clock run as of the time that COSEWIC files its annual report, when assessments are completed earlier in the year and could be provided to the minister as well.
The second question of Item 2 was on when the clock starts running in the nine-month deadline for the Governor-in-Council to make a listing decision. Right now, the department seems to have created a fiction where they will — I’ll backtrack a little. Because there is no provision in the act that states who should forward COSEWIC’s assessment to the Governor-in-Council, a fiction was created where the minister decides when that happens, and the Governor-in-Council then makes an order stating that they have received the assessment. None of this is reflected in the act, and it seems to run contrary to the intent of having listing decisions made in nine months.
Lastly, on the protection of critical habitat in Item 3, information could be requested from both departments, Fisheries and Oceans, and Environment, on how many critical habitat orders are to be made for which the 180-day deadline will not be met. Also, a reminder could possibly go to the Minister of Environment that those are binding legal requirements that are not subservient to administrative considerations.
The Joint Chair (Mr. Albrecht): Thank you. I know you’ve all followed that perfectly. We have a number of issues here. I think the one issue we may want to revisit is the idea of whether SARA needs to be updated legislatively.
Mr. Dusseault: This is one of the most serious issues before this committee. This is not the first time we have discussed it, but the way in which it has been presented today seems to be even more serious than previously. The reply we were given on July 11, 2017, indicated that complying with the law is optional, because it depends on many factors and the Department of the Environment does not think that it is required to comply, given its lack of capacity and resources, and so it is not a priority.
For me, that seems to reveal a lot about the attitude of the Department of the Environment towards its obligations. I do not know what option we have today to bring about a change and to have the Department of the Environment and the Department of Fisheries and Oceans take those obligations seriously.
At the moment, by constantly delaying the measures that must be taken to protect them, they are putting more species at risk than are already at risk. I do not know what we can do to finally get to a conclusion. If we do not, we become somewhat complicit because the species continue to be at risk and the government is doing nothing. I feel that this is one of the files in which the committee should take every step it can to try and correct the situation. I do not know which one yet; perhaps the discussions that we are going to have will let us determine what would be best.
Mr. Diotte: Looking at the timelines for listing the species and all the species at risk, from 1 to 27, I know this is a very tough question, but I think we always have to look at the real-life consequences.
Regulations and acts are very boring to the average person, but the public sees things like nine years to deal with harbour seal populations or the beluga whale in Cumberland Sound, 12 years, 11 months.
Is there anyway to track what happened to these species, especially the ones with long waits, 10 or 12 years? I know that’s outside your area of expertise, but that’s really where it hits home with the public. Because people dithered, the beluga whale population in Cumberland Sound has been reduced to four. I think it’s really important to make it real to everybody involved in this. I don’t think anyone wants to see species impacted because of sloppy paperwork, essentially.
The Joint Chair (Mr. Albrecht): I’m not sure we’ll have the answer to that.
Ms. Borkowski-Parent: I don’t have any data. I want to emphasize the fact that this was brought to you and, as you said, the issue will hit close to home for some people.
The issue is brought before the committee because some statutory deadlines were met by the executive when they took too long to make those orders.
As for the whole environmental aspect, that’s a question probably better suited for another committee on the impact of that deadline.
That said, if it is a concern for members concern, we could inquire.
Ms. Becklumb: I think Dr. Hutchings spoke exactly to that point when he testified in 2008. He said that the information becomes out of date. The decisions are made on out-of-date information. The process waits all those years. It’s COSEWIC’s job to do the assessments, and they’re on hold waiting for a decision.
Senator Woo: I think I heard counsel explain that in the absence of a decision to not list an endangered species recommended by COSEWIC on the list, that species is, in fact, listed. The default is that it is considered. Did I hear that correctly?
Ms. Becklumb: That’s supposed to be the default, but only if they miss the nine-month time frame, and they never miss the nine-month time frame because they control when it starts.
Senator Woo: They press the clock at the time they want to start the clock.
Ms. Becklumb: Right.
Senator Woo: To the extent that we disagree that the starting of the clock is a legitimate start of the clock, would there not be a legal case that, in fact, all of these species have crossed the nine-month threshold and, therefore, are deemed to be, by default, on the endangered list? Do you know what I’m getting at? We’re challenging the legality, I guess, of when the clock starts. That’s what you’ve essentially said to us. Is there not a case? It may not be for us to bring, but there may be groups out there who want to say that’s not true. The clock didn’t start on August 15. The clock started when the report was provided by COSEWIC and nine months have expired. And the law says by default that this species identified by COSEWIC is endangered.
Ms. Becklumb: You can make that argument to the court but the fact is that there is a gap in the law.
Senator Woo: It’s ambiguous, you’re saying.
Ms. Becklumb: There is no answer to that, so the department has made a process to say when it starts. The law simply doesn’t say when it starts.
Senator Woo: Can I just pursue this? You described the start of the clock as a legal fiction. One of you used that term. So by saying that, I’m assuming that there is a potential challenge as to whether that nine-month clock started when the government says it started. Is that fair enough?
Ms. Borkowski-Parent: Yes.
Mr. Scarpaleggia: So that I can better understand, we’re not saying that a regulation needs to be updated or changed. We’re saying the law is badly drafted?
Ms. Borkowski-Parent: The regulations are consistently late because they don’t meet —
Mr. Scarpaleggia: Well, there are no regulations.
Ms. Borkowski-Parent: The regulations are the orders that are made by the minister or the Governor-in-Council. They don’t meet the timelines that are in the act. So for those, the committee is insisting that when the minister or the Governor-in-Council makes those orders, they should be following the letter of the law, which is those time frames that are specifically stated in the act.
For one issue under Item 2, there seems to be a gap because the clock starts running on reception of a document.
Mr. Scarpaleggia: I get that, yes.
Ms. Borkowski-Parent: But nowhere does it say who has to send the document.
Mr. Scarpaleggia: I’m not a lawyer so maybe it takes me a little longer to absorb this, but usually we deal with regulations being faulty. Here we seem to be dealing with the law being faulty, the wording of the law as opposed to the wording of a regulation. Is that correct?
The Joint Chair (Mr. Albrecht): Based on the report that we had this morning.
Ms. Becklumb: We’re not dealing with the regulation. We’re dealing with an order, which is a statutory instrument. And we’re not dealing with the wording of this order. Rather, we’re dealing with the procedure and the timeline of the order, which is within the committee’s mandate. We’re questioning whether it was issued on time, and that is based on the words of the law. We’re saying that the law is ambiguous and contains a gap, but the timing of issuing these orders doesn’t seem consistent with the intent of the law.
Mr. Scarpaleggia: So what is the recourse for us?
Ms. Borkowski-Parent: Unlike other regulations where the committee could ultimately issue a disallowance report saying that it is going to disallow this provision because it didn’t meet the 13 criteria, the committee is not looking to disallow those. All it can really do is impress upon the department that they follow the letter of the law. So disallowance is not on the table.
Mr. Scarpaleggia: Following the letter of the law when the law is ambiguous.
Ms. Borkowski-Parent: That is one aspect —
Mr. Scarpaleggia: I have another policy question. Ms. Becklumb, you are a bit of an expert on SARA. I think you did the SARA review. You were an analyst for the Environment Committee.
Ms. Becklumb: Correct.
Mr. Scarpaleggia: When it comes to critical habitat, I seem to recall that there’s a problem because this is a federal law but habitat is often related to provincial land. Does that enter into the picture in any way? Does that complicate the picture?
Ms. Becklumb: Species are either under federal jurisdiction or provincial jurisdiction. The ones under federal jurisdiction are aquatic species and most types of migratory birds and species on federal lands, such as in parks. The act provides different provisions for federally regulated species and provincial ones.
What we’re dealing with here in terms of habitat protection are all federal obligations under section 58. There is a separate obligation to protect essential habitat when it comes to provincially regulated species. That’s section 61, and that’s a whole different provision. We haven’t touched on that.
Mr. Scarpaleggia: For my own interest, I ask for patience. The Minister of Environment, right at the beginning of her mandate, made a decision regarding a frog in Candiac.
Ms. Becklumb: The western chorus frog.
Mr. Scarpaleggia: And that seemed to cause some friction with the provincial government. That wasn’t on federal land, was it?
Ms. Becklumb: No, frogs are provincial. Sorry, I couldn’t resist.
Mr. Scarpaleggia: How did the federal government get involved in this?
Ms. Becklumb: The provinces have jurisdiction over species within their jurisdiction, which includes frogs. They’re supposed to protect those. But the Species at Risk Act contains what has been referred to as a safety net, where if the provinces fail to provide effective protection, then the feds are supposed to step in and protect. In this case, the friction was the question as to whether the province was effectively protecting their fogs, and the feds stepped in and made an emergency order.
Mr. Scarpaleggia: First time?
Ms. Becklumb: No. Before that, there was the greater sage grouse in Alberta.
The Joint Chair (Mr. Albrecht): Mr. Scarpaleggia, based upon your newfound enlightenment, are you ready to propose a motion for the committee as to how we move forward with this expeditiously?
Mr. Dusseault: Now that I think about it, one of the things we could do is to at least inform the environment and climate change committee about the situation. They actually do the review, but I am not sure whether it is every five years.
Ms. Becklumb: There is only one five-year review. It has already been done; there will be no others.
Mr. Dusseault: We can still write to the environment and climate change committee to tell them about the situation. Although there is no requirement to review the act in the near future, the committee could still look into the situation that we are telling it about: a failing in the Species at Risk Act. It could still make some recommendation to the government in order to clarify the act and the procedures in order to better protect the species at risk.
My proposal is to at least inform the committee by means of a letter from our deputy chairs about this situation that, in my opinion, is inappropriate. It is unacceptable for this to go on any longer. Perhaps the committee could take the matter in hand, if it wishes, but at least we will have passed on the information.
The Joint Chair (Mr. Albrecht): To clarify: Mr. Dusseault, on this gap that exists in the law, you would write to the Environment Committee and ask them to address the gap, but the issue of 90 days and nine months isn’t reflected in your suggestion, correct?
Mr. Dusseault: This is a matter of telling it about the situation in general, a little like the document we have before us today. It is not really a matter of giving it very specific instructions, but at least of telling it about the situation and about most of the problems we’ve identified. Then they will decide how they want to proceed.
Mr. Badawey: Correct me if I am wrong, but this committee had a report completed in 2008, articulating a lot of the concerns we had and those we still have now. Second, there was a letter issued back in December 2017 that articulated the same, so this is not news to the department.
We can’t go to disallowance, but we can, in fact, issue a report again articulating our concerns for the third, fourth or fifth time.
What authority do we actually have when it comes to, one, fixing the gap and/or, two, ensuring that they deal with the letter of the law?
Ms. Borkowski-Parent: I’ll address two first, ensuring that they deal with the letter of the law. Other than emphasizing the point again, ultimately courts are going to decide as they have decided on many cases already that the department wasn’t exactly following —
Mr. Badawey: So someone would have to challenge them.
Ms. Borkowski-Parent: Yes.
The whole point of this committee’s work, though, is to prevent people from having to go to court to clarify these issues. But as for a binding authority, it would come from the court. As Minister Goodale mentioned last week, persistence has been the greatest tool of this committee.
Mr. Badawey: Sure.
Ms. Borkowski-Parent: As for the authority for this committee on the question of not meeting the timelines that aren’t meeting the letter of the law, it’s within the committee’s criteria.
As for the gap, it could fall under committee criteria number 11 for “unusual or unexpected use of the powers conferred by the enabling legislation.” They’re using the powers they were given in a way that wasn’t exactly intended by the legislation. That’s where the committee would find —
Mr. Badawey: Thank you for that.
May I suggest, Mr. Chair, that as we did on the last round of discussions on the last issue, we send a letter off to the department that articulates once again — however, not with this committee in terms of bodies, but in past committee in terms of different bodies — and be very specific and blunt in the letter, our concerns that we’re here to try and ensure the protection and/or the accountability that the regulations, if challenged, would be best served as they’re meant to be, especially if they are they challenged in a court of law; two, as we articulated in another letter sent off to the same department in the last issue, that we expect timelines to be articulated and brought back to us; and, three, that the gap be dealt with.
I agree with Mr. Dusseault that if in fact it can’t be done in this environment, this realm of the Scrutiny Committee, we can send it to committee. I can only anticipate that they’d simply punt it back to us. We have to articulate that concern as well; that would have to be addressed.
Finally, in the same letter, if those expectations aren’t met or satisfied, we would be issuing a report.
The Joint Chair (Mr. Albrecht): Are you making that a motion?
I want to hold in abeyance the idea that Mr. Dusseault had. We’ll come back to it and possibly to both, but we will deal with this motion.
Mr. McKinnon: This is not my normal committee so I’m not entirely clear on the powers and the context. I’m just wondering if it might be within the purview of this committee to have counsel recommend specific legislative changes to close the gaps as part of a report we might make to another committee or to Parliament itself.
The Joint Chair (Mr. Albrecht): Could that be included in the letter? Mr. Badawey indicated three things plus the threat of a report. We could include the potential that we could suggest wording for —
Mr. Badawey: To the member’s comment, it’s a great point. However, I think they know what those corrections can be. If they don’t, then we will remind them of what those corrections would be within the report we would issue.
Mr. McKinnon: I was thinking in terms of shortening the loop, because some of these things take many years. Any time we can shorten the process a little bit, it might be helpful.
The Joint Chair (Mr. Albrecht): Would there be any disagreement?
Senator Stewart Olsen: I can support that because it is in line with Mr. Di Iorio’s motion for today — the method of proceeding. Consistency is always good. I also would not want to have our people waste their time preparing a report that we were not going to issue. So I would suggest we stick to our guns on what we’re doing.
Mr. Badawey: Senator, that’s a great point.
Mr. Diotte mentioned earlier that we’re sending a message to departments, regardless of government, party or the governing body at the time. Simply put, this committee is sending a strong message to departments that we’re not here to waste our time; in fact, we have expectations.
I think the protocol moving forward would be just that: When we send letters out, and you can call it whatever you want — a threat or a warning — we learned our lesson the last time around by not having staff waste their time in preparing a report and then sending another letter out. Rather, we sent that letter out right off the bat.
I think John Oliver brought that point up when we actually debated the last issue about whether we should send a report or not versus a letter.
I think, moving forward, a committee directive may be that when we run into these challenges, we send a letter off that articulates our concerns, as we have in the past, but be very clear to the department that if our expectations aren’t met, a report and/or disallowance will be issued. Of course, we would follow that course of action with respect to the expectations, whether they’re met or not.
The Joint Chair (Mr. Albrecht): I want to try to summarize. The suggestion or the motion is that we send a letter to the department indicating our concerns regarding the excessive timelines in terms of identifying the species at risk and getting them tabled, the timelines as to how they want to address that; a potential suggestion as to how they could fix the gap in the legislation; and the potential of having a report. We can’t do disallowance on this, but we could do the report.
Ms. Borkowski-Parent: One thing I wanted to clarify is that obviously Parliament is the only one that can fix the gap in the act. It’s not within the department’s purview. That’s for Parliament to do.
The only thing the department can do in the meantime is change its practice of that legal fiction where they pause the clock until they decide when to send the assessment to the Governor-in-Council.
With regard to fixing the gap, I wanted to clarify that that’s solely within the purview of Parliament, to adopt the law, but the department could change its practice in the interim.
The Joint Chair (Mr. Albrecht): Good point. I think we would endorse having that included in the letter. I don’t think there is any disagreement on that.
Are we all in agreement with that general direction? Okay. Opposed?
I want to come back to Mr. Dusseault. Would the committee agree that it’s wise, in addition to sending it to the department, to inform the Environment Committee? I personally think it’s a great idea that we could close the loop a bit by having the Environment Committee — I served on that committee.
Senator Stewart Olsen: And in the Senate as well.
The Joint Chair (Mr. Albrecht): I missed your point, Mr. Badawey.
Mr. Badawey: Let’s see what they come back with.
Senator Stewart Olsen: I was a bit concerned when I saw in this third report that there was a recommendation that the standing Senate committee do a study and that seems not to have happened. I think on the Senate side we should be more vigilant about what this committee is recommending as well.
The Joint Chair (Mr. Albrecht): I’m sensing a general feeling that we do this letter to the department and see what action is there, and failing that — Mr. Badawey?
Mr. Badawey: I think, Mr. Dusseault had a great point, and I think that as well can be consideration for future direction that we may take: to in fact take advantage of the standing committees and punt some of the issues over to them to actually do further work on it. Let’s face it: We’re dealing with regulations here; we’re not dealing with going any further than that.
Having said that, in this case let’s see what comes back to the committee. With that, if we then proceed with the report, that report would then be punted over to the committee for them to work on and dig deeper into the weeds on the issue.
The Joint Chair (Mr. Albrecht): Is there general consensus that we wait to inform the committee until we have some response from the department? Is there a push to move forward with informing the Environment Committee?
Ms. Borkowski-Parent: I need one last clarification. We’re also dealing with two departments. Just for our own guidance, Fisheries was a lot more committal and has done a lot more critical habitat work than Environment has at this point. I need to know who I am sending this letter to: both departments or just one?
The Joint Chair (Mr. Albrecht): I would think both, but Mr. Badawey made the motion.
Mr. Badawey: Both.
The Joint Chair (Senator Day): Is there any we can play one against another?
Ms. Borkowski-Parent: I’m not getting into that.
Mr. Dusseault: I’m not against the idea of waiting, but I’m not sure we’ll get anything from both departments. We can wait, but I certainly will make sure that my colleagues on my side will be aware of this situation.
The Joint Chair (Mr. Albrecht): Do you want to make it a motion, Mr. Dusseault? We’ll make it a motion as a full committee rather than me trying to discern where people are.
Mr. Dusseault: I move that we send a letter to both the Standing Committee on the Environment and the Standing Committee on Fisheries and Oceans to advise them of the situation that we are aware of.
The Joint Chair (Mr. Albrecht): Do you want to include the Senate counterpart?
Mr. Dusseault: Yes.
The Joint Chair (Mr. Albrecht): I don’t know what those are, sorry.
Senator Stewart Olsen: Energy and Environment.
The Joint Chair (Mr. Albrecht): We will include that in the motion and also send a letter informing them of the concerns we have.
Discussion on that motion? I realize there’s disagreement, but that’s the way committees work.
Senator Woo: Just for efficiency, you could include the Standing Senate Committee on Fisheries and Oceans as well. For the sake of equivalence, there are two committees on the Senate side .
The Joint Chair (Mr. Albrecht): I’ll count on our analysts and counsel to make sure the appropriate departments and committees receive that, if this motion passes.
Mr. Dusseault: It’s only to advise them of what’s happening in the past years and decades even. It’s not to give instruction to any committee, just to advise them of the situation. They can do anything they want with the information. The problem is in the law, actually, so I think it’s very important that these committees are aware of the situation.
The Joint Chair (Mr. Albrecht): I think as our general counsel has pointed out it will be Parliament that needs to change that law based on a recommendation from the committee.
All in agreement with the general direction that Mr. Dusseault’s motion sends us? Opposed? That is carried.
Are there any further discussions that we need to carry on regarding the three agenda items we dealt with as one piece?
Ms. Borkowski-Parent: No. That’s good.
The Joint Chair (Mr. Albrecht): I think because they were so similar, it was wise. Thank you for the suggestion to go with them as a unit.
(The committee adjourned.)