Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 9 - Evidence, May 5, 2005

OTTAWA, Thursday, May 5, 2005

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

Senator John G. Bryden and Mr. Gurmant Grewal (Joint Chairmen) in the chair.

[English]

The Joint Chairman (Senator Bryden): I call this meeting of the Standing Joint Committee for the Scrutiny of Regulations to order. We are pleased to welcome Mr. Jennings and Mr. Flack, from Natural Resources Canada, in response to a request from the committee to provide more detailed information in respect of a rather long process we have been involved in and to determine a resolution as soon as is reasonably possible. Mr. Flack, please proceed.

SOR/88-230 – FRONTIER LANDS REGISTRATION
REGULATIONS

SOR/88-263 – NEWFOUNDLAND OFFSHORE AREA
REGISTRATION REGULATIONS

Mr. Graham Flack, Associate Assistant Deputy Minister, Energy Policy Sector, Natural Resources Canada: Thank you, Mr. Chairman, for the opportunity to appear before the committee, although I apologize that the committee has had to take up this issue. I will begin by characterizing the briefing that I had on this file with two words: unbelievable and unacceptable. Remarkably, the file began in 1988, when Mr. Jennings and I were barely out of high school. Although I have been at National Resources Canada for only a few months, this is not typical of what I have seen in the regulatory area of the department, particularly in respect of the offshore area. The committee may be aware of an exceptional memorandum of understanding that the department was able to negotiate concurrent regulatory reviews with all federal departments, all of the regulatory offshore agencies, the two provinces and the National Energy Board. We should be doing regulations that way, which is not only smarter but also more efficient and quicker. None of those approaches has been followed in this case.

First, I will highlight the problems, as I understand them, through the history of this file. Second, I will highlight the steps that we have taken to ensure that this does not happen again. Third, I will provide the committee with specific timelines that we would propose for moving the regulatory amendment to completion.

I understand that an agreed to timeline of the events has been set out, so I will not review that in detail. With the assistance of the committee clerk, I will highlight four points from that timeline. First, there was a phase when there appeared to be confusion between the departments as a result of the dismantling of the Canada Oil and Gas Lands Administration over who was responsible and some handing back and forth of that responsibility that did not take months but did take years. Second, there were long delays in soliciting responses from provinces and industry stakeholders, again measured not in months but in years. These seemed to result, in part, from capacity challenges in the industry associations and the provinces. However, from the record that I reviewed, it would seem that the problem was a lack of follow-up by the department with those agencies to achieve timely responses. Third, there were some changing requirements, for example, cost analysis, by the Treasury Board. Throughout, Mr. Chairman, I need to characterize this as a lack of rigour, in my view, with respect to the follow-up that the department pursued to ensure that these regulations moved forward in an expeditious way. That occurred throughout the entire process.

Second, what have we done to take steps to fix these three highlighted problems and ensure that this does not happen again? First, we have worked with the two accord provinces, Nova Scotia and Newfoundland, highlighting the importance of having offshore regulations addressed in an expeditious manner. To that end, the provinces have dedicated resources specifically to ensure that, when we consult with them, approval can be achieved in a timely manner.

Also, industry stakeholders, in respect of the challenges that we viewed in that process, will send members on executive interchanges to assist in regulatory development. We believe that will assist when they return to industry in terms of their understanding of the need for timely responses.

Third, the department is finalizing an MOU with the National Energy Board, who provide the technical advisers to the department. This MOU is designed to ensure greater collaboration between the two departments. In addition, the National Energy Board has reallocated resources to work explicitly on regulatory issues in respect of dedicated resources in frontier areas.

Fourth, within National Resources Canada, we are reallocating resources internally to address all of these issues. I have asked that a tracking system be established to identify timelines for each step of the regulatory process with automatic follow-up with senior executives if those timelines are breached in any way. In that way, we will have an automatic system for intervention at appropriate levels to ensure that it is addressed.

[Translation]

To ensure final approval of these regulations, we recommend a seven-step process. I would suggest that at each stage, we keep the Committee clerk informed, by way of a letter, of the status of the file and advise him on when we intend to complete each phase of the process.

Step one: a review by the Department of Justice — already under way — which should take from four to six weeks. This review will be given priority consideration.

Step two: further to the Justice Department review, we will have one week to submit changes to our minister for approval.

Step three: getting the approval of the accord provinces. The timeline for this stage is three weeks, but we will be in touch with senior provincial officials to ensure follow up.

Step four: a three-week timeline is planned for a presentation to the Treasury Board Secretariat to obtain approval of publication in the Canada Gazette, Part I. This is beyond our control, but we will follow up with the Treasury Board Secretariat to ensure that action is taken quickly at this stage. However, the determining factor will be the frequency of meetings with the Secretariat.

Step five: a thirty-day set period for comments further to the publication of the regulations in the Canada Gazette.

Step six: a two-week review by the Department of Justice with a view to publication of the regulations in the Canada Gazette.

Step seven: a submission to Treasury Board for approval of the publication of the regulations in the Canada Gazette, Part II. This stage will likely take two weeks.

[English]

I would just like to highlight one point here. Of all the amendments that the committee proposed, we would propose to proceed on this timeline. For one of the amendments the committee proposed Politiques et Orientations stratégiques — a small one regarding changes to the user fee schedule in the last of the amendments Politiques et Orientations stratégiques — the Department of Justice has advised us that their recommendation would be to separate that from the rest of the proposed amendments. Because of the new User Fees Act, they need to do a legal opinion on exactly what additional requirements this may entail.

Our proposal is to proceed with the seven immediately on the timeline I proposed, which would take us along that timeline to midOctober. As I indicated, my proposal would be that the department write to the committee clerk at each step of those seven steps I laid out to indicate when we have achieved the results.

I thank the committee for the opportunity to appear. I again apologize for the need for this to have had to happen. I would invite questions from the committee members, to which I would be happy to respond.

The Joint Chairman (Senator Bryden): Mr. Jennings, did you have anything to add?

Mr. Philip Jennings, Director General, Petroleum Resources Branch, Natural Resources Canada: I do not, thank you.

Senator Moore: Thank you for attending here, gentlemen. Mr. Flack, the last item you mentioned was with regard to fees and the Department of Justice wanting to break it out of the regulation, that it stand alone; the department says they have to come up with a legal opinion. What is the timeline of that? We have had some experiences with this department similar to what we have had with yours. Do you have any feeling for that, or did you pin them down?

Mr. Flack: I am having another meeting with our counsel and the Justice Department counsel today. They have told me that because of the newness of the application of the User Fees Act, that the Privy Council Office and the Treasury Board are also interested in the legal opinion they are providing, as it could set a precedent for other departments in terms of the user fees. They have told me a month to provide the legal opinion, which is longer than I would normally expect, but that is a function of the consultation time that they will be required to build in with the other departments.

In order not to delay the other regulations, our recommendation is that you separate all of the other regulations out. We would proceed on the timeline that I laid out, and then, with regard to the User Fees Act, we will get the opinion from the Department of Justice on the specific steps that will be required regarding whether the User Fees Act is in play. The changes are relatively small in terms of the fees; if the act is in play, we will find out which additional steps we need to take. That was the recommendation that I have accepted from them, to move the seven amendments forward as quickly as possible. However, they have told me that the legal opinion will take a month for the reasons I have laid out.

Mr. Wappel: First, allow me to apologize for missing your presentation. I did hear part of it as I was getting my breakfast. I have read your material, however.

We are quite used to the fact in this committee that things take a long time. It is not unusual for an issue to take up 10 years. It is sad, but it is not unusual. What concerns me is the matter of the correspondence of this committee being ignored. I notice that you did not address that issue in your remarks.

I want you to address the issue of why a letter that was written on October 14, 2004, was not answered and then a letter of April 6, inviting you to come here, results in what appears to be a genuine effort to resolve the matter. Why was our letter and previous letters ignored?

Mr. Flack: That is an excellent question and I thank the member for it. I asked the same question myself. As I indicated to the committee, I am three months into my job at the department. It is my first time at the department, and I was not happy with all of the answers I got.

I asked them to do a search back to the point at which the Clerk of the Privy Council set out suggested deadlines for dealing with this committee in terms of a 30day response. I was told that, in the three years since we have had those guidelines in place, there have been 42 requests made of the department by this committee. In 41 of those cases, the response was provided within the 30 days required. This is the case where that response was not provided within that timeline.

One of the things I asked for is a tracking system for all of the elements of the regulatory process. That includes correspondence from this committee, but also the details around when we are going to attempt to achieve each of the steps, with red flags automatically being brought to the attention of senior managers so they can follow up to determine if, for example, in dealing with provincial governments, whether higher level contacts are required to move things along.

All I can say to the honourable member is that the failure to reply was a result of the correspondence falling between the cracks, and that is not acceptable.

Mr. Wappel: Is Ms. Crawford still the chief of parliamentary affairs?

Mr. Flack: I will have to go back and find out.

Mr. Wappel: Would you let us know, please; and if not, where is she? Did you talk to her about why the letter was not answered? Somebody is whispering; can we get an answer?

Mr. Jennings: My understanding is that her last day with the department is this coming Friday.

Mr. Wappel: Moving on to bigger and better things, I hope.

Did you speak to her, Mr. Flack?

Mr. Flack: I did not. I spoke to the team that was in charge of the regulations; I was not aware that she was the person in charge of providing the reply. However, the information I got was that in 41 of the 42 cases we met the timelines. I think you need to be 100 per cent on this as a common courtesy to a parliamentary committee to respond. It fell between the cracks.

You indicated that it is not unusual to see 10year timelines for regulations. That shocks me as well. That is certainly not the spirit within which the department has moved on the regulatory issues I have been involved with to date. These were not massive regulatory amendments that had substantive impact. They were important, small changes. They should have been made efficiently and quickly, but they were not.

Mr. Wappel: Mr. Flack, let us hope that you carry on that commitment for the next 10 years. I find the bureaucracy wears people down. Congratulations on 41 out of 42; and congratulations on trying for perfect. We know that does not happen. We will keep a close eye on the proposals you have set forward, and the timelines and your communication with the clerk. If necessary, you will have to come back.

The Joint Chairman (Senator Bryden): In a committee, just like the radio, you cannot have dead air. I have a question or at least an observation. The amendment that we are looking for in relation to the user fees is a drafting problem. I just spoke with our counsel. We do not see how the review by Justice, whatever it is, would affect the response to a drafting problem. It does not relate to the levying of the fees and so on.

Do you think it is worthwhile reconsidering that with Justice? I assume that they probably have the ultimate control in this area, but if what I am advised of is correct, perhaps we could proceed with that concern as well, since it does not go to anything that Justice would be looking to.

Mr. Flack: I thank you for the suggestion. I will follow up with the Department of Justice. It is my understanding, however, that when the regulations were initially proposed, the User Fees Act was not in place. Because of the delays and the fact that we are now putting this forward after the User Fees Act has now come into force, the act has created new obligations in terms of specific consultations that need to be done.

The opinion of the Department of Justice is designed to do two things: to give us an opinion on whether this regulation would be covered by the User Fees Act and the new requirements under it and, if that is so, what additional steps we would need to take in terms of specific consultations as a result of that act. If the review indicates that the act does not apply and there are no additional steps that need to be taken, then I take your suggestion on the eighth that we would like to move expeditiously with the other seven. We are awaiting the legal opinion from the Department of Justice. Because of the delay, the User Fees Act comes into effect and has an effect on the regulations that may change the requirements of the required consultations with industry stakeholders. That may have been adequate in a preUser Fees Act time but are inadequate now. The opinion of Justice is designed to do that. I would be delighted if that opinion concludes that we do not have to take additional steps, so we could include this with the other amendments.

The Joint Chairman (Senator Bryden): Are there comments?

Mr. Anders: I would like on the record that I have a constituent who has dealt with these issues for at least three years that I know of. The delays that he has encountered have been so frustrating that he is moving his entire operation elsewhere. He will continue to live in Canada but he will do all of his business in other countries. For three years on the East Coast, he has attempted to survey underwater geophysical elements. He has not been able to obtain the approvals within the period of time necessary for him to complete his work before the ice sets in. He begins at the earliest time possible but the approvals never arrive in time for him to get out before the ice forms. He has given up on making applications for Canadian contracts in this capacity. He is a highly capable fellow with dozens of employees and many jobs that he could provide, especially in a region where unemployment is an issue. He employs entirely Canadian crews and tries to be a good corporate citizen. However, he is taking his business elsewhere because of the problems that he encounters with this department. I wanted that example on the record because it is important that people are aware of the job losses caused by complications such as these.

Mr. Flack: I thank you for bringing that to our attention. We have heard of the case. I must say, coming from Nova Scotia, I find this a particularly problematic area. I will relate to the committee what the department has done.

The department has launched an important initiative under the rubric of the Smart Regulation Initiative. Through the Atlantic Energy Roundtable, which includes the two boards, the provinces, industry and the federal government, we have agreed to a wholesale review in cooperation with the National Energy Board and all stakeholders to upgrade all of the regulations to meet the objectives of the Smart Regulation Initiative.

The objective, as a result of some of the ``canaries in a coal mine,'' is to take a holistic look at the entire regulatory structure on the Atlantic offshore, with a view to applying the smart regulation model. I gave you an example earlier of a success in that area, which was the MOU developed by the department with the offshore boards with the provinces to ensure concurrent regulatory review, and with the NEB as well, so that we do not have people applying for regulations that are multi-jurisdictional only to find that they have to sequence everything one after the other so that the process can move simultaneously. That overall framework will assist in moving timelines. We have undertaken, through the Atlantic Energy Roundtable, a systematic review with a view to finding concrete solutions to moving the regulatory process forward in a way that is more efficient, while respecting the regulatory goals set out by Parliament.

The industry is excited about the proposal, as we are. We think it will bring greater certainty to the Atlantic offshore regime and ultimately provide better opportunities for Atlantic Canadians to participate fully in the Atlantic offshore.

Mr. Anders: It is important for all to understand that it is not simply a question of this particular employer and 20 of his employees that he uses for geo-seismic work. I want us all to be aware that if this geo-seismic work does not take place, thousands of jobs that could otherwise have been will not be. If you cannot map the undersea bed and figure out where the oil is, there is no drilling. If there is no drilling, there is no oil. If there is no oil, there is no oil platform. The process stops and never develops because the survey is the first step in the process. If it is regulated to the point that they cannot even do the work, then there is no hope of jobs and no hope of solving some of these employment issues. It is extremely frustrating. I hope that, if this is fixed, it will encourage others to continue with that work because I do not think that this gentleman will continue his work and make applications for additional work in that area.

Mr. Jennings: I have one comment on that. I agree entirely that the seismic and exploratory drilling are the key blocks that lead to production and many more jobs. Initial delays can jeopardize a small number of jobs and in the longer run cause a much larger impact.

The Department of Fisheries and Oceans, working with us, the provinces and the offshore boards, has actually looked at the issue of seismic work and the different applications of the regulations, depending on where the activity was proposed. The department has developed jointly with the parties that I mentioned a Canadian statement of practice that essentially lays out what is required from the proponents that propose seismic activity to proceed more quickly through the regulatory process. That is the intention of the guidelines. Public comment was sought about one month ago. It was announced on February 19, in Halifax. There was a 60day comment period and the results will be finalized. When proponents come forward for regulatory approval to the boards and to DFO, the intention is that it lays out clearly what is expected from proponents when applying, what measures they are to take to protect the environment and biota in the area. When there is consistency, they will be able to proceed with the seismic activities.

Mr. Anders: I will follow up on that because this gentleman has mentioned some of the biological aspects of the process.

Mr. Lee: Mr. Chairman, some of these topics are interesting, but we have a disallowance to discuss. This is turning into a dialogue on important issues but slightly tangential at this time.

Mr. Anders: I will accept that.

Senator Moore: Mr. Flack, from one Nova Scotian to another, why would you or Mr. Jennings not pick up the phone and call Mr. Anders' constituent and tell him the department is aware of the problem, do not go away and give us a look. Why would you not do that? Think about that. Everything that Mr. Anders says will compound down the road. Why would we drive away one of our own?

Mr. Flack: If Mr. Anders could obtain the correspondence for us, we would be delighted to do a followup with his constituent to address the issue.

Mr. Anders: Thank you.

The Joint Chairman (Senator Bryden): I wish to make one comment in respect of Mr. Anders' intervention. I think it is useful to have an example of a practical impact that happens if the processing of regulations continues to be as sloppy as it has been over the last 17 years, and you have indicated that steps are being taken.

It is one thing for us as a parliamentary committee to be frustrated in trying to get a resolution. Unfortunately, the real world marches on and sometimes marches away while they are waiting for this. It is encouraging to hear the approach that is being taken, and we appreciate you treating this issue as seriously as you are, and appearing before us and speaking to us candidly.

The committee will be charging our clerks with following up and reporting to our committee on the timelines that you have outlined for us, so that we can stay on top of this as it proceeds. With that, thank you very much on behalf of the committee.

SOR/89-93 — ONTARIO FISHERY REGULATIONS, 1989

Mr. François-R. Bernier, General Counsel to the Committee: At its meeting of March 10, the joint committee decided to give the Minister of Fisheries and Oceans notice of the proposed disallowance of section 36(2) of the Ontario Fishery Regulations, 1989, pursuant to section 19.1(2) of the Statutory Instruments Act.

The act requires a regulationmaking authority to be given this notice at least 30 days before the joint committee considers the adoption of a disallowance resolution. The draft report containing the disallowance resolution is before the committee today.

There is also, in the material distributed, a short comment on a letter sent by the provincial minister to the Minister of Fisheries and Oceans. I think some of the statements made in that letter serve to underscore the need to place section 36(2) and the committee's objection in their proper context.

In that regard, the first thing to say is that the authority to impose terms and conditions of licences is completely independent of section 36(2) of the Ontario Fishery Regulations, 1989. The revocation of that provision would not in any way impair the authority to impose terms and conditions.

It is also the case that the methods of enforcement of licence terms and conditions that are contemplated in the Fisheries Act itself, that is licence suspension or cancellation, would continue to be available to ensure compliance with those terms and conditions, even if 36(2) were removed. The only thing that is taken away by the revocation of 36(2) is the ability to punish a breach of licence terms and conditions by fine or imprisonment.

The principle relied on by the committee is that these sanctions may only be imposed if expressly authorized by Parliament. Only Parliament may create offences, and this is exactly what section 36(2) does. In fact, we note in the comment that the provincial minister himself refers without hesitation to 36(2) as the offence section.

This file, in short, is not about proper management of the fisheries; it is about protecting the rights and liberties of citizens in a society founded on the rule of law.

Mr. Chairman, when the committee gets to the actual report, I would have one suggested addition.

The Joint Chairman (Mr. Grewal): Okay. Any comment?

Is it agreed?

Hon. Members: Agreed.

Mr. Bernier: Mr. Chairman, I should like to make sure that the members have seen the proposed two sheets Politiques et Orientations stratégiques — extra sheets were distributed. If you look at the third full paragraph, it would be proposed to add to the report:

Pursuant to section 19.1(5) of the Statutory Instruments Act, the resolution contained in this Report shall be deemed to have been adopted by the Senate or the House of Commons...

Do members have that paragraph?

Hon. Members: Yes.

Mr. Bernier: If members are agreed, it would be our suggestion that this be added to the draft that was previously circulated.

The Joint Chairman (Mr. Grewal): Are members agreed?

Hon. Members: Agreed.

Mr. Lee: On a point of order, could the chair please enlighten me as to what we have just accomplished in the last two minutes?

The Joint Chairman (Mr. Grewal): You heard that; it is simply the addition of a paragraph to the report.

Mr. Lee: We have added a paragraph to a report, is that it?

Mr. Wappel: We have to adopt the report, do we not?

The Joint Chairman (Mr. Grewal): The report is adopted.

Mr. Lee: What do you mean, the report is adopted? I did not hear a motion.

The Joint Chairman (Mr. Grewal): I asked if all the members are agreed.

Mr. Lee: What did I agree to? I heard nothing from the chair; I heard nothing from a member. I heard the chair request if we agreed to something and we added a paragraph to a report. Surely to God, if we are going to do a disallowance we can do it properly.

The Joint Chairman (Mr. Grewal): Do you want to make any comments?

Mr. Lee: Let us go back to square one and see if we can do it right, if that is what we are going to do.

The Joint Chairman (Mr. Grewal): I asked if there was any comment; there was no comment. Therefore, I assumed members accepted that.

Mr. Lee: Are you telling me that you assumed that we were going to adopt a disallowance?

The Joint Chairman (Mr. Grewal): No.

Mr. Lee: I will start again. If it was the intention of members to adopt a motion adopting the report and reporting our report to the House as a disallowance report, could we please put it on the record? Could we please have someone move the motion? If that is not the case, we can move on.

The Joint Chairman (Mr. Grewal): I asked if there was any comment; there was no comment. Let me ask that again.

Mr. Lee: This is not a debatable comment. You should be receiving a motion.

The Joint Chairman (Mr. Grewal): Does anyone wish to move the motion?

Mr. Wappel: I will move the motion.

The Joint Chairman (Mr. Grewal): Mr. Wappel moved the motion, seconded by Senator Moore. All those in favour?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Opposed?

Mr. Lee: Mr. Chairman, what was that motion?

The Joint Chairman (Mr. Grewal): To adopt the report.

Mr. Lee: As amended? As long as there is some clarity here, I am happy to go along with it.

The Joint Chairman (Mr. Grewal): I asked if there was any comment. Since there was no comment, I simply asked if it was accepted Politiques et Orientations stratégiques — anyway, we will go into more detail.

Let us move on to the next item, if there is no comment.

SOR/95-105 — ON BOARD TRAINS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS, AMENDMENT

Mr. Bernier: This file was reported to the committee on March 10. On that occasion, the committee decided to request the appearance of Mr. McCullough, as designated instruments officer for the Department of Transport, to explain his statement that the drafting of amendments would begin last winter, when the committee had previously been given information that the drafting of those amendments was already well under way. That background is fully laid out in counsel's letter of March 29, 2005.

The explanation, such as it is, is found in the first full paragraph on page 2 of Mr. McCullough's letter of April 13, 2005. He writes as follows:

I would also like to address the Committee's concerns with regard to inconsistencies in reporting the status of the proposed regulations. In reviewing all of the correspondence related to this file we believe the term ``drafting'' was used erroneously to report the various stages of development and/or writing of the proposed regulations. We appreciate the Committee bringing this inconsistency to our attention and we are committed to being more precise in our reporting.

That is the explanation offered to the committee. It is certainly unfortunate that no one caught on to this erroneous use of the term ``drafting'' in all those exchanges of correspondence between 1995 and 2001. However, the committee's invitation to Mr. McCullough to appear will have produced this happy result that we now have or share the same understanding of what ``drafting'' means in respect of regulatory amendments.

We were told that the drafting of the amendments would begin this past winter and, in his letter, Mr. McCullough states that he expected the proposed amendment to be sent for legal drafting before the end of the month. If the committee wishes to accept this letter and the explanation it contains as satisfactory, then counsel will monitor the future progress of the legal drafting phase and report back to the committee in the usual fashion.

The Joint Chairman (Mr. Grewal): Are there comments? Is it acceptable to members that counsel will monitor the progress?

Hon. Members: Agreed.

SI/2003-2 — CONTROLLED ACCESS ZONE ORDER (HALIFAX, ESQUIMALT AND NANOOSE HARBOURS)

Mr. Bernier: Mr. Chairman, this file was before the committee at its last meeting. At the time, members expressed a desire to have the benefit of an opinion from a constitutional expert on the issue of the validity of the order. I undertook to submit one or two names to the committee at this meeting. The clerk is distributing brief resumes of Roderick A. Macdonald, F.R. Scott Professor of Constitutional and Public Law at McGill University, and of Stephen Scott, Emeritus Professor of Law, also from McGill University. I spoke briefly to Professor Macdonald concerning the issue and he indicated he would need first to have a look at the relevant materials before he would be in a position to say whether he could assist the committee and to know the form that the assistance would take.

He also mentioned that he thought the issue would be of great interest to Professor Scott. I did not want to multiply contacts until I had a better idea of what the committee wanted to do, so I did not contact Professor Scott at that time. Of course, I could send both gentlemen a copy of the material to provide them with an opportunity to review it and discuss it between them, given that they are in the same faculty.

The Joint Chairman (Senator Bryden): I had a conversation with counsel in respect of this. So that members of the committee have a clear understanding, we will not ask these individuals to appear before us. Rather, we will ask for an opinion, initially.

I took the opportunity to review the opinion expressed by the department in their correspondence. It is quite persuasive, but I believe it would be helpful to have one or both of these gentlemen provide the committee with an opinion on the validity of using the Crown prerogative in a situation where we are trying to protect not only our ships in harbours or our waters but also visiting ships of other nations. The department is relying on the Crown prerogative to do that. There is also a statutory authority to provide such protection. However, it seems that the way in which the department is interpreting the statutory authority it applies only to fixed areas and not to moving targets. They are using the Royal Prerogative, which is pretty clear in many ways from our constitutional documents, to gain the authority to provide a comparable protection for moving targets. It would be useful, I believe, to have an opinion that confirms the prerogative or an opinion that denies the prerogative, such that the only way to gain that authority would be to change the legislation. That is the purpose of the consultation.

Mr. Wappel: Mr. Chairman, on a technical matter, I was unable to attend the last meeting but I understood from the opening remarks that the committee decided it wanted such an opinion. I presume these professors would not consult for free. I imagine there will be a fee, and I am not familiar with the procedure in joint committees to pay for these services and whether the committee is required to provide advance notice of the amount expected. Would the committee be required to pass a motion to that effect in advance? It would be rather embarrassing if one of these professors prepared a written opinion, sent us a bill and, for some technical reason, the committee could not pay it.

The Joint Chairman (Senator Bryden): I will reply and then staff may add comments. In my discussion with counsel, the issue of a fee was raised and, if so, to give us a reasonable estimate of the fee. In our budget, we have the opportunity to pay for expert testimony and opinions. We do not have much but there is some available. We will not buy a pig in a poke; we will know the fee.

In a number of instances, academics provide their opinions without charge because it adds to their dossiers. It is part of what they do as academics.

Often, they prefer to be able to say we appeared before a certain committee and presented specific information. Certainly, we will approach these individuals on the basis of feeforservice to know the intention. That is the process.

The Joint Chairman (Mr. Grewal): Members may recall the budget that we prepared for the committee. It was more than previous budgets, to provide for professional fees for serves rendered when required. The next liaison committee for the House of Commons will be on May 12. If we are prepared, we could put something before the liaison committee for their approval. Mr. Roy, do you have a comment?

The Joint Clerk (Mr. Roy): There are specific procedural requirements for the liaison committee in respect of budget approvals for professional consultations. This committee would need to pass a motion indicating the witness and the specific subject. The information would have to be detailed. That information would go before the liaison committee for approval.

The Joint Chairman (Mr. Grewal): We do not have all of the information, yet, and so we cannot have a motion entertained at this meeting.

Mr. Bernier: Mr. Chairman, with due respect, it is a matter of concern to the committee but it is a little premature. Once these gentlemen have a look at the written material to gain an idea of what is involved, then we can have a discussion as to whether this will be a fullblown opinion for which there would be fees or whether they would simply contribute an opinion pro bono to the committee. That depends on their having a look at the issue, after which the discussion might take place on remuneration.

The Joint Chairman (Mr. Grewal): This information is for the information of members only, until further progress.

Mr. Bernier: If I may, Mr. Chairman, this information is for members to tell me whether they want to have the opinion from one expert or from two experts. I have put forward these two names and how I would proceed. I have had only a brief discussion with Mr. Macdonald.

Senator Hervieux-Payette: I recently hired an expert for another committee. Experts usually make a written proposal after they have seen the material. They usually charge, certainly not the legal fee of a law firm, but they have an agreed rate that they charge departments and the government Politiques et Orientations stratégiques — about $150 an hour. Usually, I would say it is in the range of $5,000 for a legal opinion, providing that they do not have to write a thesis on the subject.

We are not talking about a huge amount of money, but I want to give a clear indication that, even though it is prestigious to give us an opinion, I do not want to have professionals with a lot of knowledge working for free. This is a very reasonable rate, so I would recommend that they come up with a proposal after they read it and with a range. They do not quote a specific amount of money; they say we think it is going to take about 30 hours and there are a few expenses related to printing and things like that, so I would say it is a ballpark figure.

In my opinion, we do not need two Politiques et Orientations stratégiques — now that we have other lawyers who have gone through that, if one of them is ready to do it. We need to know when he will be able to deliver, because we are at the end of a university session Politiques et Orientations stratégiques — hence, they probably have more time at this time of the year than they would have in the middle of a session.

I think it is important that we clarify that. This is not a trivial matter for me; it is an important matter. Hence, I would be very happy if I could propose that we ask them for a proposal, submit it to our committee at the next meeting, and then we can proceed with the vote.

In the meantime, Mr. Chairman, I should like to know if we can inquire as to whether the process to obtain the budget is a long one. Do we have to wait for another meeting before we get the budget? How long does it take, if it is less than $10,000? I do not want to put a figure on it, but just to have that.

Personally, I think we should hire them after they have reviewed the documents, and should get a written proposal right away.

Mr. Anders: I generally prefer more opinions than fewer. If there is a potential that they will come up with slightly different renditions or information to provide us, that is fine.

I am wondering, though, in terms of payment, maybe there is a title we can confer that they would like, or maybe just being a witness is enough; I do not know. I do not know how important and prestigious we are. Perhaps that is worth more cachet than the money. I do not know.

The Joint Chairman (Senator Bryden): It is the intention, and I believe the approach has been made on the basis that what will be supplied is a written opinion. After some discussions, I believe this is probably a clear area for people expert in the field, so in this instance we can go with one person initially. On the next approach to Professor Macdonald, counsel will put as much in there as he can in relation to providing the documents and also getting back what a suggested amount and a suggested time frame would be.

Mr. Bernier: Perhaps, Mr. Chairman, if this is acceptable to the committee, since both of these are well known, excellent constitutional lawyers, send them both the material, ask them to consult with one another as to who can deliver faster and leave it to them to decide which one wants to deal with this.

The Joint Chairman (Senator Bryden): Just before I recognize you, Mr. Anders, Professor Macdonald certainly is familiar with this committee. He has provided expert advice before. It would not be unusual for our counsel to do that.

Mr. Anders: I have a clarifying question to counsel. Was it Mr. Macdonald that referred us to Mr. Scott, or was it Mr. Scott that referred us to Mr. Macdonald?

Mr. Bernier: No, Mr. Macdonald mentioned Stephen Scott.

Mr. Anders: He mentioned that Mr. Scott may have a particular interest or knowledge in this matter, more so than Mr. Macdonald, is that correct?

Mr. Bernier: Interest. He thought it was up Mr. Scott's alley, but I did not speak to Mr. Scott.

Mr. Anders: In that case, I would probably prefer Mr. Scott, if Mr. Macdonald seems to think that Mr. Scott is keen.

The Joint Chairman (Senator Bryden): I think that is being tied up by the fact that it will be suggested. They probably have offices across from each other. They will get the material and one of them will provide us with an opinion.

The Joint Chairman (Mr. Grewal): I have a comment on Senator HervieuxPayette's question about the budgeting. In the House of Commons, we go to the liaison committee; we present the budget and the liaison committee approves. That committee meets once a month, not regularly, but usually after a month or so, so it will be the time period of about a month.

Mr. Bernier: Mr. Chairman, is there a motion that could usefully be made today by this committee?

Senator Hervieux-Payette: That is what I wanted to do, so that we do not have multiple meetings before we can give the mandate. We ask for a budget, let us say less than $10,000 maximum — it might be $5,000.

The Joint Chairman (Mr. Grewal): We have about $5,000 in the budget.

Mr. Bernier: It is a motion to ask for the amount we have in the budget, is that it?

Senator Hervieux-Payette: Do we have to ask for the amount that is already in the budget?

The Joint Chairman (Mr. Grewal): No, usually what the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations has allocated to the liaison committee. This time, we budgeted less, approximately $5,000, keeping room for hiring any experts.

Senator Hervieux-Payette: We do not have to go to the liaison committee?

The Joint Chairman (Mr. Grewal): We will still have to go to the liaison committee.

The Joint Chairman (Senator Bryden): Just to be clear, when the budget was approved by the Senate, the approval was given to spend the money, whereas in the House of Commons, as I understand it, for your two thirds of the $5,000, you have to take an additional step and say, yes, we want to spend it. You go back, whereas when our budget is approved it is up to our discretion to spend our one third.

The Joint Chairman (Mr. Grewal): May I have a motion to this effect from the members?

Mr. Hanger so moved and Ms. Guay seconded it. All those in favour?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Opposed? Carried.

Let us move on.

The Joint Chairman (Senator Bryden): Could I stop us here. We are instructing the House of Commons clerk. I believe that what we just decided was that you would prepare whatever motion is required to go to your liaison committee to trigger the expenditure of your share of that $5,000. If we need to get more, we will go back, but at least we have that. We already have our one third.

Mr. Roy: Would the motion be to hire Mr. Macdonald?

The Joint Chairman (Senator Bryden): No, no.

The Joint Chairman (Mr. Grewal): Is that clear?

Let us move on.

[Translation]

SOR/92-446 — TRANSPORTATION SAFETY BOARD REGULATIONS

Mr. Rousseau: In a letter dated April 29, 2004, the Transportation Safety Board of Canada advised that it was looking into proposing some amendments to the Act. As a result, promised amendments to the regulations were put on hold. In a letter received on April 8, 2005, the Board informed the committee that it had not yet decided whether or not to amend the Act. It also mentioned that informal talks on amending the regulations had not been held owing to budgetary constraints.

Clearly, the Board is taking its time deciding whether or not to amend the Act. It is difficult to believe that it cannot hold informal talks because of budgetary constraints.

Given the nature of the promised amendments, there is nothing to stop the Board from adopting them without further delay. If the Standing Joint Committee for the Scrutiny of Regulations has no objections, Counsel to the committee could correspond with the Transportation Safety Board of Canada and request that the promised amendments be made immediately.

Some hon. members: Agreed.

SOR/92-26 — FRONTIER LANDS PETROLEUM ROYALTY REGULATIONS

Mr. Rousseau: In the matter of this file respecting amendments to the regulations, we have been informed that the Department of Justice has apparently finished reviewing the changes, but has yet to forward its findings to Natural Resources Canada. Since February 2003, the Department has given the committee the same response three times.

There is no progress to note on this file, since Natural Resources Canada does not seem to be worried about the delay. Perhaps the Joint Chairs should correspond with the Department of Justice to obtain the necessary information.

Senator Hervieux-Payette: Correspond with the minister?

Mr. Rousseau: Yes, with the minister.

[English]

The Joint Chairman (Mr. Grewal): Are members agreed to write a letter?

Hon. Members: Agreed.

SOR/2000-273 — TOBACCO REPORTING REGULATIONS

Mr. Bernier: Mr. Chairman, following consideration of these regulations and the initial exchange of correspondence between counsel and Health Canada, four issues were pursued with the department. These are identified in Mr. Bernhardt's letter of May 15, 2003. Action has been promised in respect of the issues identified on sections 11, 12 and 14.

In respect of section 7, the department has avoided a direct answer to the question raised in the first full paragraph on page 2 of Mr. Bernhardt's letter of May 15 but does allude to the possible revocation of this section. That obviously would resolve the matter. The committee still deserves an answer as to the purpose served by this particular requirement, given that the minister may always require complete information to be provided. That being the case, there should not be a need to require additional discretional information. If the committee agrees, this point would be pursued.

Many of the amendments promised to the committee were prepublished in Part I of the Canada Gazette on April 7, 2001. In his May letter, Mr. Bernhardt indicated that the committee wished to be advised when it was expected those amendments would be enacted. The reply of November 10, 2003, did not provide the requested answer. In his letter of November 24, 2003, Mr. Bernhardt pointed this out and expressly requested a reply on that point. Regretfully, the reply of June 29, 2004, still did not provide the requested update. On this basis, we would suggest that the chair pursue this aspect with the responsible minister.

The Joint Chairman (Mr. Grewal): Are members agreed?

Hon. Members: Agreed.

The Joint Chairman (Senator Bryden): For the information of members, they should read the process of making tobacco products and whether the ingredients, substances, components or constituents are artificial or part of the actual leaf. The information is mindnumbing.

Senator Hervieux-Payette: No one would want to smoke after reading that.

Mr. Bernier: If it is of interest to the committee, Mr. Bernhardt had a wonderful flow chart on components and ingredients as part of the file that we could circulate.

I would add, Mr. Chairman, that there are 106 statutory instruments submitted to the committee without comment from counsel.

The Joint Chairman (Senator Bryden): Are there any comments?

Members will recall that we were to receive copies of the application to the court of a motion to clarify Part II of the Broadcast Fees. That will be available for circulation next week. We received the English version, but because this is emanating from the committee, the translation will be available next week. As soon as that is available, it would be the chair's intention to circulate the motion to the members of the committee.

The committee adjourned.