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Proceedings of the Standing Joint Committee on
Scrutiny of Regulations

Issue 12 - Evidence, November 6, 2003

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OTTAWA, Thursday, November 6, 2003

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:35 a.m. for the review of Statutory Instruments.

Senator Céline Hervieux-Payette and Mr. Gurmant Grewal (Joint Chairmen) in the Chair.

[English]

The Joint Chairman (Mr. Grewal): I call the meeting to order. We have a long agenda today. We will deal with the first item under ``Special Agenda Item.''

SOR/94-439—NATIONAL PARKS CAMPING REGULATIONS, AMENDMENT

SOR/94-512—NATIONAL PARKS GENERAL REGULATIONS, AMENDMENT

Mr. François-R. Bernier, General Counsel to the Committee: Members have the draft fourth report before them, of course. It deals with the imposition of fees for the use of national parks otherwise than by regulation under the authority of the Canada National Parks Act. This has been going on since 1994 and the committee is of the view that it is inconsistent with the legislative intent expressed in section 4(1) of the Canada National Parks Act.

In that section, Parliament expressly dedicated the national parks to the people of Canada for their benefit, education and enjoyment and made the rights, so conferred, subject to the Canada National Parks Act and to regulations made under that act. The result of this enactment, in the opinion of the joint committee, is that fees that have the effect of restricting the use of parks by Canadians can only be imposed by means of regulations that are made under the act, not administratively, as has been the practice since 1994.

A number of minor corrections were made to the draft that was circulated to members. I have marked them in a copy, and I need to know whether members want to go through them one by one.

Senator Moore: How many are there?

The Joint Chairman (Mr. Grewal): Are there many?

Mr. Bernier: There are nine.

The Joint Chairman (Mr. Grewal): Why do we not go with the changes first and then go over them one by one?

Mr. Bernier: If you turn to page 2 of the draft, in the last line, the spelling of ``nationals'' has been corrected to ``national.''

On page 5, in the second full paragraph, footnote six has been removed and the subsequent footnotes renumbered. There was a footnote following the phase ``simply 'dedicates' the parks to Canadians for their benefit, education and enjoyment.''

The Joint Chairman (Senator Hervieux-Payette): It is the last paragraph on page 5, the third last line.

Mr. Bernier: The next one is on page 6, the seventeenth line, which occurs about the middle of the continuation of the paragraph. The phrase ``any restriction imposed on'' is removed because it was redundant.

The Joint Chairman (Mr. Grewal): There is no restriction.

Mr. Bernier: The sentence would now read: ``The proviso serves both to resolve...and to make it clear that the rights mentioned in section 4(1) may only be restricted...''

On the same page, at line 26, which is in the bottom third of the same paragraph, the word ``required'' in ``Governor in Council the required authority to do so'' is removed. The sentence would now read ``gives the Governor in Council the authority to do so by way of regulations.''

At line 33, which is the second to last line, the word ``fees'' should be inserted after the words ``to impose'' so that the entire sentence would read, ``It is that the Government has decided that it wants to impose fees by means other than the means Parliament has authorized.''

On page 7, in the sixth line from the top, there was a typo. The word ``or'' should read ``of.''

In line 9 of the first full paragraph, the middle paragraph, the sentence reads, ``The usual rule of interpretation is that a general statute...'' The word ``enactment'' would be substituted for the word ``statute.''

On page 8, the first full paragraph, line 12, the words ``by regulation'' would be deleted.

Senator Moore: Should there be a period after ``licences''?

Mr. Bernier: Exactly. Two lines down, the sentence reads, ``Parliament has also specifically enacted that the only way...'' The words ``in which'' would be inserted before the words ``the rights.'' It would read, ``...the only way in which the rights of the people of Canada.''

At page 10, in line 6, which follows the quote at the top of the page, the word ``we'' is deleted. It would read, ``for the controlling and licensing of business, trades and traffic of every description within the parks.''

On page 11, in the second line, ``otherwise'' is deleted. The sentence would read, ``Fees imposed and collected since 1994...''

At line 5, it is suggested to move the ``that'' in the phrase ``it may well be that'' and insert it before the words ``there exists'' on line 9. The sentence would then read, ``It may well be, as stated in the Regulatory Impact Analysis Statement,...that there exists `a requirement for flexibility...' Finally, on line 15, which is the last line of this portion of the paragraph, the word ``will'' must be removed.

On page 11, line 18 of the first full paragraph, the word ``manner'' would be substituted for ``form.'' The sentence would read, ``...it does not like the manner in which Parliament has provided it should exercise that authority.''

On line 19, which is the following line, ``a'' is removed. The sentence would read, ``It is difficult to understand.''

The Joint Chairman (Mr. Grewal): We can move this forward.

Mr. Lee: I picked out another correction on page 3, in the second paragraph, the English version, third line.

Senator Nolin: The French version seems to be okay.

Mr. Lee: It says, ``parks a status than differs.'' I thought it should be ``that differs.''

Mr. Macklin: That is correct.

The Joint Chairman (Mr. Grewal): Any comments?

Mr. Lee: It should be perfect now.

Mr. Macklin: Close to it.

The Joint Chairman (Mr. Grewal): If it is perfect, all those in favour?

Mr. Lee: In favour of the changes?

The Joint Chairman (Mr. Grewal): In favour of everything.

Mr. Lee: Or in favour of the report? All we did was correct a few typos. Are there not any comments on the report?

The Joint Chairman (Mr. Grewal): Are there any comments on the report?

Mr. Lee: This issue has been with us for a long time. We, on the committee, had made a judgment in the second last meeting that we would report this matter. It is simply a scenario where the government is charging fees under one statute when another statute constrains them from charging any fees unless they do it under the second statute.

It is not like the government is doing something that it could not otherwise do. It is simply doing it technically on the basis of the wrong statute. We are strictly upholding the principle of rule of law.

Have we made a request that the government reply to this report? It is at the end, is it not?

Mr. Bernier: Yes.

Mr. Lee: Hopefully, we will find a way of resolving this without consuming much more of our time and the government's time. I support adoption of this report. I will even move the adoption, if no one has done so.

The Joint Chairman (Mr. Grewal): Any other comments?

Senator Moore: Question.

The Joint Chairman (Mr. Grewal): All those in favour of adopting the report?

Hon. Members: Agreed.

Senator Harb: I know that normally the government has up to about 150 days to respond, but in view of the fact that we may only be back sometime in the spring, would it not be beneficial for the committee to add a date that is within two months? Sometime in February we should be able to tell how things are going rather than leaving it to the standard type of response. Perhaps our clerk can enlighten us on that matter.

The Joint Chairman (Mr. Grewal): We have not normally done that in the past.

Mr. Bernier: Members may recall that at the last meeting the committee cited a practice that has been developed where committees may, rather than use paragraph that appears here, provide that notwithstanding Standing Order 109, they request a response within 30 or 60 days.

It must be understood that this does not bind the government in anyway, shape or form. If the government does not table within 60 days, there are no consequences, contrary to Standing Order 109, where there would be consequences if the government failed to take action within 150 days.

Having said that, apparently committees have, in order to indicate a sense of urgency, provided a phrase in their reports that reads, ``notwithstanding the standing order.''

Mr. Till Heyde, Joint Clerk of the Committee: In response to Senator Harb's specific question, the request for a response does survive prorogation; it does not survive dissolution. It would be carried into a new session if there were prorogation, but it would not go into the Thirty-eighth Parliament.

The Joint Chairman (Mr. Grewal): Does that mean that we have to resubmit the report?

The Joint Chairman (Senator Hervieux-Payette): If an election is called in January, then the report goes down.

The Joint Chairman (Mr. Grewal): However, what happens if the government does not call an election in January or February?

The Joint Chairman (Senator Hervieux-Payette): I do not know.

Mr. Cummins: Would it not be wise, given the clerk's comments, to make the request that a response be received by committee prior to dissolution? I do not think we can expect it to be any faster than that given the circumstances, but we would certainly want it by then.

Mr. Wappel: I do not think we can do that because the government does not know until the Prime Minister is ready to announce dissolution. However, we do know that, assuming the Senate passes the bill if it has not already, the boundaries will change April 1, 2004. We could request, at the latest, an answer by March 31, 2004, or, as Senator Harb suggests, in February 2004. We could make a specific request because 150 days would bring us to the end of March.

Mr. Cummins: We will not get it and that is my point. Given the circumstances, we will probably not receive a prompt response because these changes are occurring or anticipated, but we would hope to receive a response before dissolution. That is why I said that this should be kept in mind.

Senator Moore: The idea would be to have the proper authority in place before the next parks tourism season that begins in May, 2003, primarily in the West. Would we not want to have something by the end of March so that we could consider it in view of the service to the public and the timing? If we wait six months, that would mean the end of May and the season has begun. We want to correct it before the next season begins, do we not?

The Joint Chairman (Mr. Grewal): That is a good point. We need a time limit. However, due to the uncertainty that is surrounding us these days, this report must be tabled in the House of Commons today. If we make these changes, we may not be in a position to adopt the report and send it to both Houses.

I am advised by counsel that we could table the report as it is, if it is adopted. In the future, we could look into tightening this. Hopefully we will have that response from government if the House has not prorogued. All these uncertainties limit our options.

Senator Moore: Even if there is a change of minister, the department carries on because the officials are still in place. The same people responsible for this file in the department are probably still there. They would be familiar with our actions to make it proper.

I am not so concerned about the minister as I am about the functionaries working on the file and trying to get them to do it in time so that we are not into May and June without a proper resolution.

Mr. Lee: Mr. Chairman, I want to remind members of the committee about what we all call the ``bone.'' Staff knows about the ``bone.'' When they construct an agenda for us, they ensure that the agenda contains one item for us to chew and rip apart until we are exhausted, after which we get down to business.

If we are to use this particular item as the bone, I think we could find bigger fish to fry on the agenda. Perhaps the staff did not throw us a bone to chew on today and we are simply spending our time on this item. We have been constitutionally polite and politically correct. This item has been before us for seven years. We will throw it out there. There is a material change anticipated in the government. We will receive a reply in due course.

Keep in mind that although the House may prorogue or dissolve, this committee was here in 1996 and has been through two elections. We will be here after the next election. I cannot guarantee that, but past practice shows that the committee will be here, the staff will be here, and they will assiduously pursue this important issue just as much as they have assiduously addressed the issue in the fabulous report that covers every detail that could ever exist.

If someone wants to reduce the 150 days, make a motion and we could do that.

Mr. Macklin: I was concerned that, after all these years, the question of whether it happened in 180 days or 150 days or 120 days seems a bit like dealing with the shape of the head of the pin.

If I understand correctly, the essence of the issue is this: What is being charged can lawfully be charged; it is simply a matter of enacting it under the proper statute. In my view, there is not any major wrongdoing in terms of the public. I would think that as long as they will complete this matter — and I think that is the whole purpose of this report — in a proper manner, I do not think it matters whether it is done within 150 days or 60 days.

Senator Moore: I would suggest that we determine a report date earlier than 150 days. If it is the consensus of the committee that it does not matter, then why have we wasted the last half hour discussing this?

Does counsel believe that we should move the date up, given that we have been at this since 1994? Does it matter?

Mr. Bernier: You are asking my opinion, senator. It is the government's response. If the government wishes to follow the recommendation here, it will do so and can do so before it responds to the committee. It could have done so at any time since 1994, and it has not.

I am not sure that I see the point of when the response comes in. The response is a way to force the department to address in a coherent fashion the issues raised by the committee.

I would add to what Mr. Macklin said. The authority is in place. The important distinction from the point of view of citizens is that, under one statute, it is done by regulation — an instrument that is registered and published in the Canada Gazette. It must be pre-published for publication. When it is done, as it has been done since 1994, it is done administratively. There is only a requirement that it appear in the Canada Gazette, Part I. The instruments are not registered and are not part of the law of this country. That may be a bit of an issue.

Senator Moore: If we let it go the 150 days —

Mr. Bernier: That would bring us to April 5, I am told.

Senator Moore: If we receive a satisfactory response, we will be happy; if we do not, and given the opening of the parks for another season, what would we do? We would then be recessed for the summer and would not resolve the issue again. It would be close to another year before it could be looked after. If that is the case, then I would like to get an earlier reporting date.

The Joint Chairman (Senator Hervieux-Payette): Why do we not stipulate a date? Normally, the longest time for consultation on a new regulation is 60 or 90 days. Why do we not say either 60 or 90 days? Not having a regulation is changing where it belongs. We will give them the usual time for publication and the adoption of a new regulation.

That is the way it has been done normally within the framework of the government.

I would not say the end. I would say within 90 or 60 days. Otherwise, they forget about it. They are used to this time frame.

The Joint Chairman (Mr. Grewal): Do we have consent to say 90-days' notice?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Everything remains the same. Without looking further at the report, except adding the clause stipulating 90 days, we will table the report tomorrow. I will not say sitting days, just 90 days.

The next item on our agenda is SOR/91-687

SOR/91-687—PROCESSED PRODUCTS REGULATIONS, AMENDMENT

Mr. Bernier: The one outstanding amendment that remains to be made in this case is scheduled for publication next March. This will be monitored in the usual way.

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Agreed.

SOR/95-233—SASKATCHEWAN FISHERY REGULATIONS, 1995

Mr. Bernier: The consultation process in relation to the amendments promised to the joint committee were to conclude last month. Provincial officials were to submit a request for an amendment this fall. I would suggest that an inquiry be made at this time as to the current status of the regulatory process.

Senator Harb: Their response states that the consultations will be completed in October. Are you saying that they have completed the consultations? It is November now.

Mr. Bernier: Yes, I would assume the consultations have now been concluded.

Mr. Cummins: Was it a significant overhaul?

Mr. Bernier: No, it would not have been.

The Joint Chairman (Mr. Grewal): Are we okay with this?

Hon. Members: Agreed.

SOR/95-548—MISCELLANEOUS AMENDMENTS REGULATIONS (DEPARTMENT OF AGRICULTURE AND AGRI-FOOD) 1995-2

Mr. Peter Bernhardt, Counsel to the Committee: There are three outstanding drafting amendments here. They are to be resolved as part of the long-awaited revision of the process products regulations. As we saw in an earlier item, this rewrite is targeted for pre-publication next March. I would suggest the file be brought forward in the new year for followup.

The Joint Chairman (Mr. Grewal): Agreed?

Hon. Members: Agreed.

SOR/99-144— ST. LAWRENCE SEAWAY AUTHORITY DIVESTITURE REGULATIONS

SOR/98-230—PORTIONS OF THE DEPARTMENT OF NATIONAL DEFENCE DIVESTITURE REGULATIONS

SOR/98-231—PORTIONS OF THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES DIVESTITURE REGULATIONS

SOR/98-232—REGULATIONS AMENDING THE AIRPORT TRANSFER REGULATIONS

SOR/99-3—PORTIONS OF THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION DIVESTITURE REGULATIONS

SOR/99-247—PORTIONS OF THE ROYAL CANADIAN MOUNTED POLICE DIVESTITURE REGULATIONS

SOR/2000-1—CERTAIN CANADA PORT AUTHORITIES DIVESTITURE REGULATIONS

SOR/2000-60—PORTIONS OF THE CANADA PORTS CORPORATION DIVESTITURE REGULATIONS

Mr. Bernhardt: Treasury Board has indicated an amendment to the Public Service Superannuation Act to clarify the scope of the enabling authority for all of these instruments is to be made at the next opportunity. They also advise that while they would like to proceed as quickly as possible, it cannot be said for certain when this would be.

Given that the committee has accepted that the purpose of the amendment would be simply for clarification, I suggest that, at least for now, patience be the order of the day and that the committee simply follow the progress.

Mr. Lee: I guess no one has any idea when the next train will go by on this item. It could be five years from now. The commitment is there. The intention is there. We are agreed on all of the details, so it is a matter of waiting for the train to come through the station.

Mr. Bernhardt: Yes. We can keep pushing the stationmaster for a timetable.

Mr. Lee: That is fine. Thank you.

C.R.C. c. 568— DENATURED ALCOHOL REGULATIONS

Mr. Bernhardt: New regulations were to be made upon the coming into force of the Excise Act, 2001, on July 1. The committee had previously been advised that new regulations were completed. This might give rise to the question of why there should be a delay of three months between the coming into force of the new act and the time those completed regulations were actually sent to cabinet.

They were, however, pre-published on September 20, so it does seem that things are moving along. Again, it would simply be a matter of monitoring progress, if members are satisfied.

The Joint Chairman (Mr. Grewal): Agreed?

Hon. Members: Agreed.

SOR/95-191 —NOVA SCOTIA OFFSHORE PETROLEUM INSTALLATIONS REGULATIONS

(For text of documents, see Appendix A, p. 12A:1)

Mr. Bernhardt: Amendments have been promised to deal with the two numbered points in counsel's letter of October 1, 2001. As concerns the question of the authority for the reporting requirements in Part V of the regulations, the department's reply cites section 153(1)(b) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act. This provision authorizes regulations concerning exploration and drilling, the production, processing and transportation of petroleum, and related works and activities.

While the department recognizes that this provision does not refer to reporting requirements, it suggests that these requirements help fulfil the purposes of the provision. This is apparently considered to be sufficient.

However, requirement to submit reports imposes a substantive obligation. The power to make a regulation prescribing such a requirement must, therefore, either be conferred expressly or by necessary implication. It cannot be seen as simply incidental to some other power.

In the present instance, reporting requirements cannot be said to be authorized by section 153(1)(b). They are not regulations concerning exploration, drilling, production, processing and transportation. They are regulations concerning reporting. That is a separate matter.

While reporting requirements might be intended to verify compliance with these other regulations, these other provisions in and of themselves are not those provisions. If regulations requiring the furnishing of information are necessary, a solution would be to amend the act to expressly provide the authority.

We would recommend that this matter be pursued in a further letter to the department.

Mr. Wappel: When you do that, will you also take them up on pursuing the other act? You mentioned something about the Canada-Newfoundland Atlantic Accord Implementation Act having similar provisions.

Mr. Bernhardt: Yes.

Mr. Wappel: You will expand your focus.

Mr. Bernhardt: We will parallel the two.

The Joint Chairman (Mr. Grewal): Good point. Any other comments? Agreed?

Hon. Members: Agreed.

SOR/96-114—CANADA OIL AND GAS CERTIFICATE OF FITNESS REGULATIONS

SOR/96-117—CANADA OIL AND GAS GEOPHYSICAL OPERATIONS REGULATIONS

SOR/96-118—CANADA OIL AND GAS INSTALLATIONS REGULATIONS

(For text of documents, see Appendix B, p. 12B:1)

Mr. Bernhardt: Amendments have been promised to resolve all the points raised with respect to these three files with the exception of point 16 in the letter concerning SOR/96-118. It is suggested that the explanation provided on that point can be taken to be satisfactory. If members agree, we will simply follow up progress of the promised amendments.

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

Hon. Members: Agreed.

SOR/98-2—REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

SOR/99-169—REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS

(For text of documents, see Appendix C, p. 12C:1)

Mr. Bernhardt: Some 59 points in total were raised in connection with these two instruments. In truth of fact, many of these points had several aspects, so the actual number of concerns was in fact somewhat higher than 59. A number of amendments have been promised; indeed, three of them have already been made.

There are at least a dozen instances, however, where it is not clear what the nature of the amendments that have been promised will be. In some cases, the reply from the agency simply reveals it does not understand the nature of the problem it has agreed to fix. As a result, there will be a need for considerable further clarification.

In addition, there are 21 points on which the reply is either partially or totally unsatisfactory. Many of these deal with substantive matters. Obviously, it is not possible to go through each of these 21 points in detail. Some of these issues concern lack of authority for regulations; imposing record-keeping and information submission requirements; provisions the purpose of which are to ensure compliance with acts other than the act under which these regulations are made; fees of questionable validity; the application of the regulations to vessels; the question of whether vessels are establishments so as to come under the act in the first place; and the authority of the president of the agency to grant exemptions. There are also a number of cases where the reply is simply incomplete.

Having said all that, the core problem is that the basic scheme of the regulations is entirely at odds with the scheme reflected in the statute. Section 14 of the regulations provides that no person shall export fish, process fish for export or store fish for export unless the processing or storing is carried out in a registered establishment. There are also requirements that must be met by applicants for certificate of registration, provisions dealing with amendment of certificates, revocations, suspension, cancellation and the issuing of temporary certificates.

In short, the regulations set up a detailed licensing scheme. Unfortunately, there is simply no authority in the act for this kind of scheme. While the act does authorize regulations requiring establishments to be registered, this does not mean that the right to operate an establishment in the first place can be made to depend on the registration.

The act contemplates that anyone can operate a fish processing plant. No permission or authorization can be required to do so. Operators of plants are required to comply with the regulations concerning equipment and the procedures they have to follow. Operators can also be required to register their plants. If they fail to comply with the regulations or fail to register, that may well constitute an offence, and they could be prosecuted for failure to follow the regulations. This is entirely different than saying your right to operate the business in the first place depends on you securing a licence.

I have made a very long story as short as possible. There is much to pursue with these issues. Again, further correspondence to the agency would seem to be in order.

Mr. Lee: This file may be with us for a while. Is it old? It appears to be only three or four years old.

Does counsel think that we may have a quality control problem in the Departments of Agriculture and Agri-food and Justice? Does this reflect a quality control problem? Is it a bigger issue than a bunch of typos?

Mr. Bernhardt: I think that in respect of the agriculture regulations generally, the agency is developing a practice of trying to fit square pegs into round holes. Part of that is simply the change in circumstance. Many of these statutes are fairly old, and it has been decades since they have been rewritten or significantly amended. I suppose, in fairness to the agency, it is trying to keep up to changing circumstances with an inadequate tool. The short answer to that is to let us go back to Parliament and get some new legislation.

I believe a bill was introduced several years ago that would have provided authority for this kind of scheme, but it died on the Order Paper.

Mr. Lee: Conceptually, the government is trying to regulate undertakers of harvested fish. The act is not well designed to allow that or not well enough designed.

Mr. Bernhardt: The act envisions putting requirements in place that must be followed such that if they are not followed then the law is being broken and the person may be charged.

Now, they are trying to turn that into a licensing regime whereby someone cannot go into the business unless they apply, meet the criteria and secure the licence. It has, in a way, reversed the whole process.

Mr. Lee: My suggestion is to make as much progress as we can on the small issues. On the big issues, if we do not have consensus on a way to resolve them then perhaps we should call the department at some time in the future to map out a recovery project.

Mr. Bernier: One aspect, Mr. Lee, that is partly in place and that we have seen in other programs administered by the Food Inspection Agency has to do with the area of privatization in terms of enforcement of those statutes, whether it is feed, seed registration or fertilizer regulations. We have moved from a model of enforcement predicated on public service involvement with inspectors appointed by the government to, in many cases, models that rely on the private sector to fulfil these functions. The statutes in many cases, as Mr. Bernhardt pointed out, were passed at a time when MPs or legislators would not have conceived the inspection function being done by the people being regulated.

The model in place was a public service model. That is the round peg in the square hole. That is one aspect that runs through a number of the areas where we have moved, in terms of policies, away from policies that were reflected in the enabling statutes. People have not taken the time to say that we need to go back to legislators; that we no longer want to regulate these areas in this fashion; that we have a new approach; and that we should have a statute that fits, if Parliament so desires.

Mr. Cummins: Is there an issue of provincial jurisdiction? The province licenses the processing facilities. It is my understanding that if fish are processed for use within the province, then you do not require a federal licence. However, if the fish are for export, you do require a federal licence.

Mr. Bernier: That is the hook.

Mr. Bernhardt: That is the federal ``in'' to the process.

Mr. Bernier: The Fish Inspection Act ties it to import-export.

The Joint Chairman (Senator Hervieux-Payette): It is also an interprovincial matter the moment the fish leave a province, and it falls under federal jurisdiction. There could be provincial and federal jurisdiction over the fish, depending where they are sent.

How often were fines of $250,000 and jail terms of five years imposed for that kind of infraction? I have my doubts that it has ever applied.

Mr. Cummins: I am curious about the relationship between a provincially licensed facility and a federal act. There is no conflict in that area that is not addressed by these regulations.

Mr. Bernhardt: I suppose it would depend entirely on what that facility was doing. There may well be situations that would require the plant to be licensed by the provincial and the federal government. If the facility were processing fish for sale within the province and also processing fish for export, then presumably it would be subject to both sets of laws.

Mr. Cummins: What if there is a conflict in the laws?

Mr. Bernhardt: That is the question on which our constitutional law is based, and we are then into questions of paramountcy and the issues that make constitutional academics wealthy.

Mr. Bernier: One would have to give way to the other.

Mr. Cummins: My point is that this issue is complex and not as straightforward as one may think in respect of the application of these regulations.

Mr. Bernier: De facto you find that the provinces are not unaware. If the provinces are happy with the federal regime, then they just leave it at that, probably, in many cases.

The Joint Chairman (Senator Hervieux-Payette): When it comes to food, we do not have multiple agencies. When it comes to the quality of the food and if it is dangerous for your health, only one organization in Canada certifies that food is for consumption and has been processed with the proper standards.

We have the fishing side and the health side. There are two statutes dealing with the same product. They are complementary, I presume, because that is why the feds are superseding the provincial jurisdiction. We have the final jurisdiction on the health side for the food.

There are no provinces that say that certain food is not healthy. However, there are municipal regulations for the cleanliness of restaurants.

The Joint Chairman (Mr. Grewal): The consensus is that counsel will follow this issue. Later, we will have the officials appear. It is agreed?

Hon. Members: Agreed.

SOR/2000-55 — PORT AUTHORITIES OPERATIONS REGULATIONS

SOR/2002-179 — REGULATIONS AMENDING THE PORT AUTHORITIES OPERATIONS REGULATIONS

(For text of documents, see Appendix D, p. 12D:1)

Mr. Bernier: Amendments are promised in relation to the matters raised in points numbers 1, 2 and 4 to 13 of the letter of November 26. The reply, which addresses point 8 and 14, can be viewed as satisfactory.

With respect to points 15, 16 of the same letter, while the department appears to be in agreement as to the need for corrections, it wishes to consult with the ports concerned. At this time, it would be useful to obtain a final answer on those two points, as well as an indication of the progress made on the promised amendments.

In addition, of course, the making of these regulations resolves the concerns previously expressed by the committee in relation to the Windsor Harbour Commission Wharf Bylaw and the bylaw prohibiting the operation of vessels in designated waters.

The Joint Chairman (Mr. Grewal): Any comments? Is it agreed?

Hon. Members: Agreed.

SOR/2002-121 — REGULATIONS AMENDING THE PUBLIC PORTS AND PUBLIC PORT FACILITIES REGULATIONS

(For text of documents, see Appendix E, p. 12E:1)

Mr. Bernier: Enactment of these new regulations resolves the 10 remaining concerns of the committee in relation to the public harbours regulations and government wharves regulations.

As regards the points raised with respect to the new regulations, amendments are promised on all of the issues that have been raised, including that of the legality of the provisions imposing a liability for owners for removal expenses in circumstances that do not involve an obstruction to navigation.

Finally, the reply on the question raised in item 11 provides a satisfactory explanation for the provision.

It is a matter of following up progress of the amendments.

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

Hon. Members: Agreed.

SOR/2002-200 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1182 — CORRECTIVE AMENDMENTS, MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix F, p. 12F:1)

Mr. Bernier: As noted, this instrument effects one minor correction to the French version of the regulations.

As regards the matters of drafting raised in Mr. Bernhardt's letter of September 24, most of them were corrected in an amendment that was gazetted shortly after the letter was sent. The one correction that remains to be made involves correcting the spelling of ``huile de soja'' in item A.01 of table II, division 15, part B of the regulations. An update of that correction will be sought.

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

Hon. Members: Agreed.

SOR/99-105— REGULATIONS AMENDING THE ONTARIO FISHERY REGULATIONS, 1989

Mr. Bernhardt: An amendment to schedule XIII of the regulations remains outstanding. A progress report on that should be sought from the department.

The only other question concerns section 3(2)(b), which provides that the regulations do not apply to self-contained artificial waters located on private property into which fish supplied from an aquaculture facility or commercial fishing operation are released for non-commercial purposes. This gave rise to the question of whether the Fisheries Act would apply to these waters in the first place. If they do not, obviously there is no need for section 3(2) (b).

The department initially advised that they had come to the conclusion that the provision served no legal purpose and agreed to delete it. Apparently, the province took issue with this. The department has now changed its view and maintains that the act, at least in some respects, would indeed apply to non-commercial, self-contained fish ponds on private property. Therefore, in their view the provision does serve a purpose.

I suppose it is conceivable that certain elements of the act could be held to apply to this type of fish pond. As well, since the regulations are stated not to apply to them, at this time anyway, the point is largely academic. We, therefore, suggest the matter be considered closed.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): I am not at all familiar with some of these words. For instance, I have never heard of a grass carp, a big head carp or a snakehead. We are learning a lot about fish.

[English]

SOR/2003-228 — REGULATIONS AMENDING THE BOATING RESTRICTION REGULATIONS

(For text of documents, see Appendix G, p. 12G:1)

Mr. Bernhardt: This instrument made a minor correction that had been requested. It also led counsel to question certain slight inconsistencies in some of the terminology used in the French version of the boating restriction regulations.

It was suggested that while perhaps these were not sufficient to warrant an amendment, greater attention to consistency might be desirable. The department replied it would bear this in mind in the future. There may be some implication that these inconsistencies might be the subject of amendment at some later point. I suggest this is satisfactory and the file can be closed.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): What is the meaning of the phrase: ``Although we have a BRR amendment currently under way, it is too far advanced to incorporate your suggestions at this time''? When we are in the process of drafting regulations and a minor amendment is suggested, why can we not incorporate it? I am referring to the second paragraph of the letter of September 5, 2003. I do not understand why we should have to wait, since the regulations are being drafted.

Mr. Bernier: It is a question of internal procedure. If the process of drafting regulations is already underway, making further amendments at a given stage in the cumbersome administrative process could mean having to scrap everything and start over again. That is what this means. The department does not want to have to start over again when they are nearly ready to adopt the draft regulations. We did not actually request an amendment. We merely suggested that consideration be given to our drafting procedures. That is all.

[English]

SOR/2002-17 — REGULATIONS AMENDING THE BOATING RESTRICTION REGULATIONS

Mr. Bernhardt: Section 2.4 of the boating restriction regulations permits a person who would otherwise be prohibited from operating a pleasure craft by virtue of an age restriction to do so if they are accompanied and supervised by a person 16 years of age or older. There are also requirements that must be met by persons operating pleasure craft set out in the competency of operators of pleasure craft regulations.

Some explanation was requested as to how the two sets of provisions worked together. It was also wondered whether in the interests of clarity a cross-reference to the requirements in the competency of operators of pleasure craft regulations might perhaps be added to the boating restriction regulations.

The department provided the requested explanation. They have also indicated a preference to keep the two regulations entirely separate. They, therefore, do not wish to cross-reference the one in the other.

The reasoning for this is not particularly persuasive, I would suggest, but given what we are dealing with here, members well feel that the point is not worth pursuing any further.

Hon. Members: Agreed.

[Translation]

The Joint Chairman (Senator Hervieux-Payette): Are you dealing with the next section as a whole?

[English]

SOR/99-13 — EXEMPTION LIST REGULATIONS

(For text of documents, see Appendix H, p. 12H:1)

SOR/2000-120 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1068 — ESTABLISHMENT LICENCES AND GOOD MANUFACTURING PRACTICES)

SOR/2000-319 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE AUTHORITY REGULATIONS

(For text of documents, see Appendix I, p. 12I:1)

SOR/2000-412 — REGULATIONS AMENDING THE OLD AGE SECURITY REGULATIONS

(For text of documents, see Appendix J, p. 12J:1)

SOR/2001-207 — RAILWAY COMPANY PAY OUT OF EXCESS REVENUE FOR THE MOVEMENT OF GRAIN REGULATIONS

(For text of documents, see Appendix K, p. 12K:1)

SOR/2001-230 — REGULATIONS AMENDING THE CANADA STUDENT FINANCIAL ASSISTANCE REGULATIONS

(For text of documents, see Appendix L, p. 12L:1)

SOR/2003-108 — REGULATIONS AMENDING THE ONTARIO FISHERY REGULATIONS, 1989

(For text of documents, see Appendix M, p. 12M:1)

Mr. Bernier: Dealing with those instruments as a group, there are 16 promised amendments, including the promised revocation of two provisions imposing fees without legal authority in the case of SOR/200-319 and the amendment of another provision that provides for the payment of interest without proper authority in the case of SOR/2001-207.

SOR/2002-345 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATION (PARTS I AND VI)

(For text of documents, see Appendix N, p. 12N:1)

SOR/2002-425 — REGULATIONS AMENDING THE OIL POLLUTION PREVENTION REGULATIONS

(For text of documents, see Appendix O, p. 12O:1)

SOR/2003-134 — REGULATIONS AMENDING THE NARCOTIC CONTROL REGULATIONS

(For text of documents, see Appendix P, p. 12P:1)

SOR/2003-135 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS

(For text of documents, see Appendix Q, p. 12Q:1)

SOR/2003-137 — REGULATIONS AMENDING CERTAIN DEPARTMENT OF FISHERIES AND OCEANS REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix R, p. 12R:1)

SOR/2003-161 — REGULATIONS AMENDING THE CHILDREN'S SPECIAL ALLOWANCE REGULATIONS

(For text of documents, see Appendix S, p. 12S:1)

SOR/2003-239 — ORDER REPEALING THE MANUFACTURED TOBACCO IMPORTED FOR FURTHER MANUFACTURE REMISSION ORDER

(For text of documents, see Appendix T, p. 12T:1)

Mr. Bernier: In terms of action taken, these instruments make 14 amendments requested by the joint committee, including the revocation of an ultra vires provision. Finally, some 49 instruments have been submitted to the committee without comment.

Mr. Lee: Thank you.

The Joint Chairman (Senator Hervieux-Payette): Are members agreed?

Hon. Members: Agreed.

The committee adjourned.

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