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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 12 - Evidence of April 19, 2007

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OTTAWA, Thursday, April 19, 2007

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.

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

[English]

The Joint Chairman (Mr. Szabo): Good morning and welcome. We will move to the first item for consideration.

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

SOR/94-512 — National Parks General Regulations, amendment

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

Peter Bernhardt, General Counsel to the Committee: Mr. Chairman, the issue raised in these files is how to reconcile sections 23 and 24 of the Parks Canada Agency Act with sections 4(1) and 16(1)(r) of the Canada National Parks Act. Sections 23 and 24 of the Parks Canada Agency Act authorize the minister to fix fees administratively for services, facilities, rights and privileges provided and conferred by the Parks Canada Agency. However, section 4(1) of the Canada National Parks Act provides that the national parks of Canada are dedicated to the people of Canada for their benefit, education and enjoyment, subject to that act and its regulations. Section 16(1)(r) of that act authorizes the Governor-in-Council to make regulations fixing fees in relation to national parks. In its Report No. 74, which is included in the materials before the committee, the committee took the position that the existence of sections 4(1) and 16(1)(r) in the Canada National Parks Act precludes the imposition of fees for access to and use of national parks under sections 23 and 24 of the Parks Canada Agency Act.

The government response to Report No. 74, which is also included in the materials before the committee, advances several reasons for disagreeing with the committee's contention that the phrase ``subject to this act and the regulations'' precludes other statutes from restricting the right of Canadians to access and use national parks. However, the response fails to offer an alternative interpretation of this phrase and notes that the corresponding phrase in the French version appears in a different part of the provision and has a different meaning than the English version. The conclusion that the government appears to draw as a result of these inconsistencies is that the phrase is meaningless and should be ignored. There is no mention of the fact that a previous minister made a commitment to amend the French version of section 4(1) to make it consistent with the English version.

The government also maintains that there is no express conflict between the two fee-setting powers under the two acts and that they can stand together. While it is true that there is no express conflict the response does not address the logical consequence of this position — that is, that two fees could be imposed, one administratively by the minister and one by regulations made by the Governor-in-Council for the same thing.

Parliament did not intend there to be two fees payable by one person for the same product or service. I suggest that when Parliament intends that two delegates be entitled to exercise the same power over the same subject matter then, at the very least, good legislative policy requires that this intent be clearly expressed. The note suggests that the committee might wish to consider asking the government to amend sections 23 and 24 of the Parks Canada Agency Act to clarify that the powers conferred under those sections are meant to operate notwithstanding the fee-setting powers conferred by any other act administered by the Parks Canada Agency.

Given the potential for both the minister and the Governor-in-Council to establish fees in national parks for the same thing, the committee might also wish to suggest that a mechanism be added to the Parks Canada Agency Act to clarify whether once a fee is fixed for something under that statute the other statute is precluded from operation, or in the alternative, where there are two fees fixed for the same thing, which one of those fees is actually to be imposed.

The Joint Chairman (Mr. Szabo): Is there a case to make that the present circumstance, in fact, does not meet the scrutiny criteria?

Mr. Bernhardt: The fees are presently fixed under the Parks Canada Agency Act administratively. The committee has taken the view that that is an improper exercise of that power because, in effect, that power is trumped by the Canada National Parks Act, which says that you have to do this by regulation. The government has said, no, we have two powers here and we can use either one, that they are both valid and that it is up to the government to choose.

Even accepting that, it is suggested that there still be some need to clarify which one of those will take precedence over the other.

The Joint Chairman (Mr. Szabo): If this were not challenged or continued to be challenged, could it be a precedent or allow other unintended consequences in other legislation or drafting of legislation?

Mr. Bernhardt: In setting a precedent, the government's position is that there has to be an express conflict and that if there is no express conflict it can use either.

Even conceding that to the government, that does not preclude the need to make amendments to clarify how these things are to work together. If that were done, that would also solve any of the committee's problems. If Parliament says, yes, we have these two powers and this is how they will operate, then we do not have a problem any more.

The Joint Chairman (Mr. Szabo): I noted that the government's opinion was basically that the phrase was meaningless and should be ignored, which means that legislation has some elements that are unnecessary or can summarily be dismissed because that is the government's opinion or reading of it. It does not seem to be a good legislative practice.

Mr. Bernhardt: No, and that is the difficulty the committee has always had with that position. The government is basically saying that something is a general purpose clause. The government is saying that it is kind of a statement of principle, yes, it is part of the act, but it really does not mean all that much.

The fact of the matter is that it is a legislative provision, Parliament enacted it presumably for a reason, and it has to be given some content.

Mr. Epp: If we recommend to the government that this legislation should specifically state ``notwithstanding,'' as you indicated, how does that actually happen? I should know that after 14 years here, but would the government be required to bring in legislation that amends one phrase of this act, a little one line bill?

Mr. Bernhardt: Basically, it would require adding a provision at the end of sections 23 and 24 saying these provisions apply notwithstanding —

Mr. Epp: I understand.

Mr. Bernhardt: — and then probably a second provision that says that, in the event of any conflict or inconsistency, or two fees being enacted under the two, which one will apply and which one will not.

Mr. Epp: I have never observed a bill this long introduced in the House of commons simply to comply with the Scrutiny of Regulations Committee, but I suppose it could happen.

Mr. Bernhardt: There is also the possibility of using the Miscellaneous Statute Law Amendment process to add a clarifying amendment. As you know, the government compiles a series of routine amendments to various statutes and there is a special fast track to get those through. That might be a good vehicle for something like this as well. That suggestion could certainly be made to the government. Maybe the government could include that as an item in its next bill.

Mr. Epp: Mr. Chairman, we should proceed with making that recommendation as counsel is suggesting.

You talk about the discrepancy between the English and the French. Since I am unilingual, unfortunately, and depend totally on the interpreters, could you just enlarge a bit on what that discrepancy is?

I might as well say, while I am waiting, I love those interpreters.

Mr. Bernhardt: On page 5 of the government's response from April 1, 2004, paragraph 11, the French version states that the national parks shall be used by the people of Canada in accordance with the act and regulations. The English version states that the use by the people of Canada can only be restricted by the act and the regulations. One seems to be directed towards the regulation maker, saying that if you want to restrict people's use you can only do it in the act. The French says that the people can use it but the people can be restricted by the act, so there is a discrepancy there.

The French leans more towards supporting the government's view. The complication is that a previous minister agreed to amend the French to make it conform to the English.

Mr. Epp: And never did it.

Mr. Bernhardt: There was clearly recognition from the government that the English is what was intended.

Mr. Lee: Since the English version has been in place for some 75 plus years, never changed, notwithstanding the attempt to change the discrepant French portion, I would choose to view the French version as still discrepant and the English version as the proper articulation of it. That is my particular view.

This is not the first time that we have wrestled with this. This is a 10-year plus file. It has not spawned any litigation yet. It is not clear that it has made it difficult for any of our citizens, but under the rule of law rubric we really have to do our work here. I want to ask, as I read the Parks Canada Agency Act, sections 23 and 24, the objects for which they may charge fees or set fees. There are five mentioned, namely, the service, the use of a facility, products, rights and privileges provided by the agency.

The use of a facility provided by the agency I choose to see as not meaning access to the park. The concept of entering the park seems to be addressed in the earlier statute, the Canada National Parks Act, and that is reflected in sections 4 and 16 of that act. Section 16 clearly refers to charges for the use of park resources — rents and other charges for the use of park resources — which comes close to access but does not actually say it.

Mr. Bernhardt: No, I guess the presumption would be that if you are entering into a park —

Mr. Lee: Breathing the air — you are using the park's resources.

Mr. Bernhardt: You are deriving some benefit from the fact that you have park rangers and directional signs, and so on.

Mr. Lee: I have not seen that view urged upon the government yet. Was that an approach taken at any time by counsel in addressing this issue — that none of the acts explicitly deals with access to the park?

Mr. Bernhardt: No, I think it was always assumed that, while there was no specific reference to access, those fee- setting powers were broad enough to encompass it.

Mr. Lee: For both statutes?

Mr. Bernhardt: Yes.

Mr. Lee: Does not that lie in conflict with the view of our counsel shown in the memo — that the words ``dedicated to the use of Canadians'' pre-empted any attempt to charge for an admission?

Mr. Bernhardt: The view was that it pre-empted any attempt to charge for admission under any other statute. If you could find your authority in the National Parks Act, then you could make a regulation restricting that access — for example, by using paragraph (r) to impose an entry fee.

Mr. Lee: Okay, that is fine. Having cleared that up a little bit, I tend to agree with Mr. Epp. About the only thing we can do here that is constructive is ask the government to amend the statute to remove this lack of clarity or inconsistency — I do not know what you would call it.

Mr. Bernhardt: There is still the need to amend section 4 to have the English and French conform; we do have a previous undertaking, so that would be followed up as well.

The Joint Chairman (Mr. Szabo): Are there further questions or comments? The recommendation is threefold: We will seek to conform the English and French, amend sections 23 and 24 of the Parks Canada Agency Act, which will make sure that the intent is clear that either act can do the same thing, and finally, once one of the acts sets a fee, the other one is precluded from acting on that provision.

Mr. Bernhardt: Given that the committee is looking for amendments to an act, I suppose that would be a letter to the minister directly.

The Joint Chairman (Mr. Szabo): Mr. Epp raised the point that we do not need a large bill; even our disallowance item on the Fisheries Act was a one-clause, three-line bill. Here we have an item that is a decade old; the solution is not rocket science and it is not disruptive.

I am not sure whether you can ever give any assurance that Parliament will deal swiftly with items like this, but it certainly makes sense. I want to flag that because if there is proper scrutiny and diligence at this committee with regard to what is necessary to eliminate an inconsistency, where it is a miscellaneous-type amendment or clarification, the committee may want to recommend to Parliament that the matter be dealt with expeditiously as an administrative convenience so that the matters can be taken off the agenda of Parliament — which we are.

Instead of bringing back items that are minor in nature relative to the business of the legislators, if we see a clear and uncontentious approach to remedying the situation, perhaps we could make sure that that is clearly laid out with a recommendation, if appropriate, from the committee for an expeditious response and addressing by Parliament, if it is agreed by the department.

Mr. Lee: Mr. Chairman, this committee has already reported on this. Our first report was as clear as we could possibly be. The arguments contained in our brief and memo today reflect those. There is nothing new.

The government has rejected — for its reasons, articulated in the letter from the minister or in the carefully prepared response — the position of the committee. I am a bit reluctant to just go back and chew the same old bread crust again.

I want to ask counsel if the only avenue available to us would be to take steps to disallow a regulation or statutory instrument made pursuant to the offending provisions. Is that correct?

Mr. Bernhardt: The difficulty here is that we do not have a statutory instrument. We have fees fixed by the minister on an administrative basis.

Mr. Lee: Therefore, we do not have any disallowance capability.

Mr. Bernhardt: No.

Mr. Lee: Having no powers to deal with it, and left simply with a disagreement with the government, I think what we are doing here is running it up the flagpole one more time. However, I would not want the record to reflect any discouragement on our part here, so I will go along with Mr. Epp's suggestion.

The Joint Chairman (Mr. Szabo): We would all like to see the file closed if we can. If it takes the recommendation of the committee, with the support of all parties, to be able to give that encouragement to the department to stop debating the fuzz and simply make a clarifying amendment, this should be dealt with expeditiously by the legislators. We can work together on this.

Are there further questions or comments?

Mr. Epp: I just want to point out again to members of the committee the very last statement, statement 14, in the government response: ``The Government cannot accept the Committee's findings, as they are unsupported by jurisprudence . . .'' This is the part that makes me wonder, and which could create potentially grave consequences for the protection of national parks.

How could they ever come to that conclusion, if this were enacted?

An Hon. Member: It is Tories.

The Joint Chairman (Mr. Szabo): Let us not speculate. We do have a recommendation.

Senator Bryden: I do not know whether this is helpful or not, but it appears to me that what is here is not likely to cause any mischief. If it were going to, it would have done so by now.

The reference, for example, to furthering the potential for both the minister and the Governor-in-Council to establish fees in national parks for the same facility use, how likely is that to happen without one knowing what the other one is doing? Presumably, the minister is a member of the Governor-in-Council.

There is a process — I think one of the chairs referred to it — the miscellaneous amendments process. We get great documents that come before us every once in a while with many miscellaneous amendments that never made it past the post in the regular process. Is this not something that could be done in one of those exercises of miscellaneous amendments? I am asking counsel.

Mr. Bernhardt: We can certainly make that suggestion. I do not see any reason why it would not be.

The Department of Justice has its own criteria for what it puts in those packages, so it has, in a sense, the final say on how those are assembled. However, it is certainly a suggestion the committee has made in the past to resolve a problem.

Senator Bryden: Perhaps the wording could suggest that this committee receive an assurance that such a process would be used at the earliest opportunity to correct this anomaly and give an indication of the appropriate timing. That might be the most satisfactory action for the committee to take. Government will not likely do a special amendment, if they have not done so already.

The Joint Chairman (Mr. Szabo): There seems to be consensus that the committee be as helpful as possible and suggest ways to close this file to the satisfaction of all parties.

Are members agreed on counsel's recommended action?

Hon. Members: Agreed.

SOR/2004-263 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE FISHERIES ACT (MISCELLANEOUS PROGRAM)

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

Mr. Bernhardt: The note on this file follows up on the appearance before the committee of officials from the Department of Fisheries and Oceans on March 22, 2007, in respect of certain long-standing practices for the fixing of close times in various fisheries regulations. Members will recall that until relatively recently the committee was unable to make any progress on the resolution of its objections to the practices in question. The department has now advised that it is following a practice of tailoring close times ``to more clearly reflect periods when it is not likely or desirable for fishing to occur.'' If and when amendments to fisheries regulations are put forward, this will gradually result in the revision of the entire regulatory framework.

This was confirmed by the witnesses when they appeared. While they continued to dispute the committee's position, they indicated that DFO is ``comfortable seeking to address the issues raised through regulatory and other amendments.'' The department continues to make efforts to update close times and has undertaken to provide the committee with a yearly summary of the changes made to close times.

This is a considerable step forward. After ignoring the committee's objections for many years, the department, which will still not accept those objections, has agreed to take some steps to address them. Bill C-45, the proposed new Fisheries Act, contemplates that the existing regime of close times will eventually be replaced with close times fixed by fisheries management orders made by the minister.

Despite all this progress, the process of reviewing close times as various regulations come up for amendment will not be completed soon. There seems to be no willingness on the part of departmental officials to speculate as to how long this might take. As well, no assurance was offered that no new token close times or year-round close times would be enacted in the future.

The committee should determine what action it wishes to take on this file. The committee could simply monitor the situation for the next while, to gauge the extent of the remedial action that takes place in the coming months. This would be consistent with the approach of the committee prior to the department's change of heart several years ago. The note also suggests that, in the interim, the minister could be asked whether he would agree that no new year-round close times or purely token close times would be added to the regulations.

The Joint Chairman (Mr. Szabo): Are there interventions from members? Counsel recommends that the committee monitor for any developments and send a letter to the minister seeking assurance that the situation will not be exacerbated.

Mr. Bernhardt: That will give the committee some indication as to how quickly things might move forward.

The Joint Chairman (Senator Eyton): The letter will include a request for assurance that there will be no new year- round close times.

Mr. Bernhardt: In that way, the situation would not worsen.

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

Hon. Members: Agreed.

REPORT NO. 39 (FIFTH REPORT OF THE STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS)

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

Mr. Bernhardt: Mr. Chairman, Report No. 39 was tabled in 1987. The committee made nine recommendations in the report in respect of the exercise of law-making powers by Indian band councils. Five of these related specifically to a large number of bylaws that dealt with intoxicants. These five recommendations were dealt with by the government. The remaining four recommendations were accepted by the government at the time: specifically, that band bylaws be exempted from the Statutory Instruments Act directly by legislation; that guarantees of the right to notice of delegated legislation and access to it by those affected be put in place; and that in respect of band bylaws the legislation include a protection to the effect that conviction for breach of the bylaws could not be forthcoming unless steps had been taken to bring the law to the attention of those affected by it.

Since 1987, there have been a number of attempts to implement these recommendations. Unfortunately, all of them floundered. When the department's October 24, 2005, letter was considered by the committee, it was decided that in view of the recent change in government the new minister should be asked to confirm the advice that Bill C-7, which had been the last attempt to implement these recommendations, would not be reintroduced. In his reply dated September 11, 2006, the minister confirmed that this bill will not be reintroduced. He noted that efforts to develop a new framework for First Nations programs continue. In effect, it seems that the department has given up trying to implement the committee's recommendations, at least as a separate initiative.

The committee's options are somewhat limited. It could write a letter to ask whether this new framework will address the issues dealt with by the committee and whether there is a timetable for introducing this new regime. I am not sure that such a letter will elicit a concrete response. Alternatively, the committee could report to the both the House of Commons and the Senate expressing its disappointment that the accepted recommendations were never implemented and the hope that they will be reflected in any new framework for First Nations governance. Perhaps then the committee could close the file.

Senator Harb: The committee should write to the minister. Mr. Lee brought to my attention that the response states:

In consultation, we will move beyond the Indian Act and work towards arrangements which define a new future. We intend to address the root cause of many of the problems that we face — the archaic and tangled and patronizing legislation that defines the vast majority of relations between governments and Aboriginal peoples.

That is a rather fluffy response that does not go to the heart of the matter. The committee should take a two- pronged approach — namely, a letter to the minister specifically stating the agreement already reached and the disappointment that the committee has not seen a definite time frame for the implementation of its recommendation. After the response to the letter is received, it should be taken to the House. That could be the best action to take. It is quite interesting that in his earlier response the minister said that he wanted the Senate to participate in the development of a framework for First Nations. Obviously, whoever prepared this letter was not thinking it through in terms of the recommendation of this committee. The fly-by-night letter is disappointing.

Mr. Epp: The original work of this committee had to do with the matter of gazetting, or the equivalent thereof. Is it possible to arrest properly a citizen and charge him with an offence that he had no reasonable way of knowing was the law. That is the principle of the issue, if I am not mistaken. For example, I received a $95 parking ticket in Ottawa the other day indicating that my car was parked where I should not have parked it. Although the sign clearly indicated that one could park there until 8 a.m., authorities applied a different bylaw stating that cars should be moved out of there by 1 a.m.

We should be able to reasonably know. Is that not the issue here?

The Joint Chairman (Mr. Szabo): Your parking ticket?

Mr. Epp: No, the issue is the gazetting or the equivalent of it.

Mr. Bernhardt: The committee had recommended that the Indian Act be amended to provide the same kinds of safeguards, in relation to band bylaws, that apply to regulations generally under the Statutory Instruments Act. These are the publication and notice provisions and defence against a contravention for something that has not been published. The government agreed, some 20 years ago, and said, yes, you are right, those things should be in the Indian Act. Here we are 20 years later and there have been many famed attempts to do that.

Mr. Epp: Since then, we have had a number of agreements with First Nations establishing self-government. What is the requirement that they have to meet in order to inform the citizens of the rules and regulations they make as they govern?

Mr. Bernhardt: As far as I am aware, there are none.

Mr. Epp: Could that not be used by someone who is charged under one of their rules to say, you have not published, you have not told anyone?

Mr. Bernhardt: I rather suspect it could.

Mr. Epp: Therefore, that seems unwise.

Mr. Bernhardt: The government recognized it was unwise as well. The government accepted those recommendations and has tried on several occasions to implement them, but it has been stymied every time and not necessarily through any fault of the government's.

Mr. Epp: I imagine the First Nations object to the federal government telling them what to do vis-à-vis their law- making.

Mr. Bernhardt: Ironically, an objection to one of the bills from the First Nations was to the exemption from the Statutory Instruments Act. They felt that that relegated bylaws to a second-class status. The view of the committee, and I think of the government, was that it was treating them as more of an independent body. They did not have to go through the Department of Justice and they did not have to be reviewed by Justice because they were made by elected band councils. The response from First Nations was that that is not true, that if the Department of Justice review is good enough for your regulations it should be good enough for our bylaws. It was a case of being damned if you do and damned if you do not.

Mr. Epp: The provincial governments in this country are not required to gazette things in the national sense.

Mr. Bernhardt: They have their own.

Mr. Epp: We ought to encourage the minister to mandate, by legislation, that self-governing nations in this country, First Nations, do some form of gazetting. Can that be mandated?

Mr. Bernhardt: That was what the committee was recommending through the Indian Act.

Mr. Epp: I do not think we should give up on that important principle.

Mr. Bernhardt: That is why the committee has been knocking on that door since 1987. We can write back to the minister and express the committee's continuing concern indicating that, if possible, it would like a firmer undertaking as to how and when this will come to fruition.

Mr. Epp: I would concur with that.

The Joint Chairman (Mr. Szabo): It is a matter of interest, obviously, to the First Nations, and I would be willing to bet that they are probably not even aware or engaged in the issue we have raised and whether or not they had an opportunity to represent their rights and interests. I would not suggest that we start engaging the First Nations on this matter, but if we are going to write to the minister to get some clarification or assurances or disclosures with regard to the impacts, what are the consequences of not having this dealt with so far and what would be the consequences if this matter continues to be a protracted process that might be here a decade from now or more?

Are there any consequences to First Nations that are substantive?

Mr. Norlock: I would concur with my friend Mr. Epp that we continue on the vein to make it a level playing field. I must say to the chair, be careful what you wish for if you engage First Nations. Lastly, I have actually been involved in First Nations policing and, despite some of the problems we see here, justice is done and it does get done, including enacting, in Ontario, the Highway Traffic Act. The band simply says that in order for the police in Ontario to execute the Highway Traffic Act they simply make it pursuant to the Indian Act and the right things get done. So, despite some of the technical problems, things are getting done in that regard, I can assure the committee.

The Joint Chairman (Mr. Szabo): I sense there is not a big appetite simply to close the file now. It has been recommended that we write back, reaffirm our concerns and look to reaffirm assurances that these matters will be resolved as they outlined in his letter of September to us.

Is that agreed?

Hon. Members: Agreed.

[Translation]

SOR/78-213 — NATIONAL PARKS GENERAL REGULATIONS

SOR/82-949 — NATIONAL PARKS GENERAL REGULATIONS, AMENDMENT

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

Lindsay Armstrong (Legal Counsel): Thank you, Mr. Chairman. Of the 22 points raised by the committee, 18 have been resolved. For the four remaining points, Parks Canada is in agreement with the committee's comments and has accepted the amendments that the committee has proposed.

However, the required amendments have yet to be completed. The Joint Chairmen wrote to the Minister of the Environment on June 5, 2006. In his letter of November 1, 2006, the minister replied that the agency would make every effort to have the amendments prepublished in the Canada Gazette before the spring of 2007. If the committee is in agreement, legal counsel could write to the minister to ask where matters now stand.

[English]

The Joint Chairman (Mr. Szabo): Are members 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 document, see Appendix E, p. 12E:1)

Mr. Bernhardt: The committee had raised concerns in connection with some 50 particular provisions of these regulations. A number of amendments have been promised. More fundamentally, however, the committee has concluded that the regulations put in place a regime that is simply not supported by the current legislation.

In effect, you have a set of regulations that fundamentally is at odds with what the parent act contemplates. Given the fundamental nature of this concern it was decided to pursue it directly with the minister.

The particular problems are illustrated by two features of the current regulations. They are both discussed in the letter to the minister dated May 6, 2005. The first is the attempt to institute a licensing regime for fish processing establishments when all that the act provides for is the registering of these establishments. The important distinction between the two concepts is discussed starting at the bottom of page 2 and continuing on to page 3 of the chairman's letter.

The second concern relates to numerous provisions that impose record-keeping requirements and information submission requirements without any clear legislative authority. This is discussed in detail on pages 3 to 6 of that same letter.

Bill C-27, which was introduced in the previous Parliament, would have remedied the current lack of authority for these elements of the regulatory regime. Unfortunately, Bill C-27 failed to pass. This being the case, the chairman wrote to the new minister on June 5, 2006, to ask whether the bill would be reintroduced. It was also asked that if it was to be reintroduced whether a clause could be included in the bill that would validate the current provisions of the regulations. Alternatively, these provisions would have to be re-enacted following passage of the new legislation.

In his September 8 reply, the minister simply advises that it is his intention to protect the validity of the current regulations, and that the Canada Food Inspection Agency is examining approaches to deal with the committee's concerns.

All of this seems a little vague. If the committee thinks it is desirable to have a clearer commitment from the minister with respect to what action is to be taken, as well as the proposed time frame, the committee would presumably have to write back to the minister to request that.

Although the agency's June 28, 2005, letter was considered to be largely unsatisfactory, I should add that a reply on the several specific points was held in abeyance at the time in the hope that Bill C-27 would pass. Given the present situation, counsel should again write to the agency to take up the discussion of those particular points as well.

The Joint Chairman (Mr. Szabo): Are there any questions, comments or input? Are the recommendations satisfactory? Is it agreed?

Hon. Members: Agreed.

Senator Moore: Will there be a letter to the minister?

The Joint Chairman (Mr. Szabo): Yes, to reaffirm the concerns articulated prior to the request.

[Translation]

SOR/2006-324 — REGULATIONS AMENDING THE CROWN CORPORATION PAYMENT REGULATIONS

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

Ms. Armstrong: These regulations repeal subsection 3(3) of the Crown Corporation Payments Regulations. The joint committee had considered subsection 3(3) to be illegal, in that it allowed crown corporations to freeze 1993 payments in lieu of taxes at the 1992 level.

The crown corporations involved are going to reimburse municipalities the difference between the amounts paid and the amounts that ought to have been paid. The summary of the impact study on the regulations gives an idea of the amounts of the reimbursements.

Preliminary results indicate that the total could be between $8 and $10 million. If the committee is in agreement, the file can be closed.

[English]

The Joint Chairman (Mr. Szabo): It is recommended that we can now close the file, given the outcome. Is that agreed?

Hon. Members: Agreed.

[Translation]

SI/2006-2 — PROCLAMATION GIVING NOTICE THAT THE AGREEMENT BETWEEN CANADA AND IRELAND FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME CEASES TO HAVE EFFECT IN ACCORDANCE WITH PARAGRAPH 2 OF ARTICLE 29 OF THE CONVENTION

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

Ms. Armstrong: The version of this proclamation published in the Canada Gazette, Part II, indicates that it is made under other than statutory authority. But the enabling authority is section 6 of the Canada-Ireland Income Tax Agreement Act, 1967. This was pointed out to the Privy Council Office, and an erratum was published in the Canada Gazette on February 22, 2006. If the committee is in agreement, this file can be closed.

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

Hon. Members: Agreed.

SOR/2006-43 — PROCLAMATION DECLARING THAT THE GOVERNMENT CORPORATIONS OPERATION ACT IS APPLICABLE TO BDC CAPITAL INC.

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

Ms. Armstrong: The point is the same as the one raised in the last file, and the result is the same. If the committee is in agreement, this file can also be closed.

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

Hon. Members: Agreed.

[English]

SOR/93-220 — HISTORIC CANALS REGULATIONS

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

Mr. Bernhardt: I should mention that there is a printing error in the materials for this morning. Following the April 19, 2005, letter from the Parks Canada Agency, only the second short page of counsel's reply was printed. The rest of that reply simply noted that the substance of the specific points that had been raised was not addressed in the agency's letter, and asked that a reply that did so be forthcoming. Copies of the full letter are being circulated this morning. Otherwise, it did not deal with any substantive matters.

The Joint Chairman (Mr. Szabo): Are you recommending that the matter be deferred?

Mr. Bernhardt: Given the nature, I think we could proceed.

The Joint Chairman (Mr. Szabo): So, in your opinion, we still can proceed — there is no substantive impact.

Mr. Bernhardt: No, the text of the letter simply indicated that, in the department's reply, it had said they would be taking some action, but there were no specifics and we asked for specifics.

The Joint Chairman (Mr. Szabo): Does the committee wish to proceed?

Hon. Members: Agreed.

Mr. Bernhardt: As the covering note mentions, the regulations resolve three points that had been previously raised by the committee in connection with the predecessors to these. Unfortunately, the new regulations then gave rise to some 20 new matters.

After several exchanges of correspondence, amendments were promised to address all of these, except for point 20, which concerns section 52 of the regulations. Section 52 states:

Every person who contravenes any provision of these Regulations is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $400.

Since the Department of Transport Act only permits the Governor-in-Council to impose fines for a contravention of the regulation, it was suggested that the words ``guilty of an offence punishable on summary conviction and'' simply be deleted.

As a matter of drafting, where an act authorizes a regulation-making authority to impose a penalty for failure to comply with a regulation, all that the regulation should do is fix a penalty. It should not be drafted so it looks like it is attempting to create an offence; the offence is already created.

The department agrees that the wording in question could be deleted. It says that to do so would not alter the provision's essential nature. It then argues that deleting the words would create an absurdity. It is difficult to reconcile these two statements.

The situation is simple. There is no authority in the act for regulations creating offences, but only to prescribe penalties for offences created by the act, which is the case here — we have offences created by the act. It follows that the wording in question is, at best, unnecessary — it simply restates that there is an offence in the act for contravening the regulations — or, at worst, it is misleading. It implies that it is the regulations that create the offence when, in fact, the offence is found in the statute as passed by Parliament.

The agency seems unable to grasp this. I would suggest that a further letter go to the department pursuing this point, and asking what progress is being made on the other 19 amendments that have been promised.

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

Hon. Members: Agreed.

An Hon. Member: It works in spite of itself?

Mr. Bernhardt: Yes. Parliament is very careful with delegating the power to create an offence, and you should not willy-nilly be stating in the regulations that you are creating an offence. Here it is not a problem because you already have the offence in the statute; but just as a matter of drafting, it should be taken out.

SOR/2002-76 — MARINE ACTIVITIES IN THE SAGUENAY-ST. LAWRENCE MARINE PARK REGULATIONS

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

Ms. Armstrong: Four points have been raised in this file. The first point concerns section 3, the effect of which is to make it an offence to contravene the terms and conditions of a permit. There is no authority in the act for such a provision.

As members are aware, the committee has always taken the position that clear and explicit enabling authority is required for such a provision. The issue should be pursued in a further letter to the agency, if the committee is in agreement.

The second point concerns section 6(2), which provides that an application for a permit to carry on certain activities in the park must be accompanied by a fee, fixed by the minister under section 9 of the Department of Canadian Heritage Act.

In its response, Parks Canada stated that the authority for setting fees for permits in the park is provided in sections 23 and 24 of the Parks Canada Agency Act and that the reference to the Department of Canadian Heritage Act will be replaced when the regulations are next amended.

Section 17(l) of the Saguenay-St. Lawrence Marine Park Act also authorizes the Governor-in-Council to make regulations determining fees for permits in the park. The existence in both acts of enabling provisions delegating authority to fix fees for permits in the park gives rise to a similar issue as that discussed in the first file this morning, SOR/94-439 and SOR/94-512. If the committee agrees, this issue should also be pursued in a further letter to the agency.

Counsel also pointed out a difference between the Parks Canada master list of fees, which stated that the fees were approved by the minister, and the Parks Canada Agency Act, which provided that the minister has the authority to fix the fees. This question appears to have been resolved, as the master list of fees published on October 19, 2005, indicates that the fees have been both fixed and approved by the minister.

The next point concerns section 7, which provides that the holder of a permit must allow a park warden or enforcement officer to inspect any vessel authorized to operate under the permit, for the purpose of monitoring compliance with the terms and conditions in the permit.

The act does not contain an enabling provision conferring powers of inspection through regulation. In its response, Parks Canada recognized that there are grounds for amending section 7 of the regulations and indicated that it would take counsel's comments into consideration when next amending the regulations. This is an unsatisfactory response. It is important for the committee to know the nature of the proposed amendments. If the committee agrees, counsel will write to the agency requesting an assurance that the regulations will be amended, the nature of the amendments and a projected time frame.

The agency has agreed to correct the discrepancy in section 17(q) of the act. Counsel will confirm with the agency whether the necessary steps are underway and the date on which the amendment might be made.

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

Hon. Members: Agreed.

SOR/2003-302 — REGULATIONS AMENDING THE NATIONAL PARKS FIRE PROTECTION REGULATIONS

SOR/2004-299 — REGULATIONS AMENDING THE NATIONAL PARKS AIRCRAFT ACCESS REGULATIONS

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

Mr. Bernhardt: Two points were raised in respect of each of the files. Amendments have been promised to deal with the drafting matters identified in point 2 in each case. A progress report on these should be sought. The question raised in point 1 in each file is identical, hence they are combined in today's agenda. In each case, the regulations state that subject to sections 40 and 41 of the Canada National Parks Act, the regulations apply to park reserves as if they were parks. It goes without saying that the regulations would not take precedence over the parent act, and because the act already states that it applies to park reserves subject to sections 40 and 41 of the act, it was pointed out that it served no purpose to restate this in the regulations. The agency argues that it is indeed necessary to restate this or some ambiguity might arise as to whether the exclusion of sections 40 and 41 extended to regulations made under the act or to the act only.

It is tempting to suggest that any possible ambiguity exists only in the mind of the agency on this point. If the agency wishes to restate the obvious, there is no real harm.

The Joint Chairman (Mr. Szabo): Are members agreed to follow up on the promised amendment and not pursue this particular question?

Hon. Members: Agreed.

SI/2004-109 — DIRECTION APPLYING THE AUDITOR GENERAL ACT SUSTAINABLE DEVELOPMENT STRATEGY REQUIREMENTS TO CERTAIN DEPARTMENTS

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

Ms. Armstrong: The purpose of this direction is to make sections 24(1) and 24(2) of the Auditor General Act applicable to the departments set out in the schedule to the direction. Section 24(3) of the act authorizes the Governor- in-Council to direct that the sustainable development requirements in the Auditor General Act at sections 24(1) and 24(2) apply in respect of a department on the recommendation of the appropriate minister for a department not named in Schedule I to the Financial Administration Act. The introductory paragraph states that the direction is made on the recommendation of the prime minister. However, the prime minister is not the appropriate minister as that term is defined in the Financial Administration Act for any of the departments listed in the schedule to the direction. It would therefore appear that the recommendation was not made by the appropriate minister, as required by section 24(3) of the Auditor General Act.

In response, the Clerk of the Privy Council stated that the most practical approach to this matter would be for his officials to pursue the prospect of replacing the Order-in-Council at the next convenient opportunity. If the committee agrees, counsel will request further particulars and a projected time frame within which the Order-in-Council might be replaced.

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

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Thank you.

SOR/89-106 — SHIP FUMIGATION REGULATIONS

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

Mr. Bernhardt: By way of introduction, some 21 amendments were promised in connection with these regulations. I can advise that proposed amendments were pre-published in Part I of the Canada Gazette on December 23, 2006. It would seem that progress is being made.

In respect of one previously promised amendment to section 17(2)(a)(iii), on October 13, 2005, Transport Canada wrote to explain that it reconsidered this provision and has come to the view that it accurately reflects the intended effect. The explanation would seem to be satisfactory and, therefore, no amendment to this provision is necessary.

Counsel's October 19, 2005, letter pursued two final points. The department's reply of December 7, 2005, provided the requested clarification concerning section 4(4). The final remaining matter concerns Part IV of the regulations applying to ``mobile units, the contents of which have been fumigated but not aerated before the units are loaded on board a ship.'' The authority for this was questioned, given that the Canada Shipping Act authorizes regulations respecting the safe use of pesticides in the fumigation of ships. This would not extend to the fumigation of objects prior to their being loaded. The latest reply from the department advises that the mobile units in question are classified as dangerous goods under the International Maritime Dangerous Goods Code and that Part IV is authorized not as previously argued under the authority to make regulations respecting safe use of pesticides in the fumigation of ships but rather under an entirely different provision authorizing regulations in respect of dangerous goods.

While it might have been preferable had the department explained this in 2003 rather than advance a number of other arguments and wait until now to pull a rabbit out of its hat, the fact remains that at least in substance the most recent reply is satisfactory. It is simply a matter of following up on the progress of those pre-published amendments.

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

Hon. Members: Agreed.

The Joint Chairman (Mr. Szabo): Thank you.

We are still under Part Action Promised, Mingan Archipelago.

SOR/2004-301 — MINGAN ARCHIPELAGO NATIONAL PARK RESERVE OF CANADA SNOWSHOE HARE REGULATIONS

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

Ms. Armstrong: Four points were raised with respect to these regulations. A satisfactory response was received on points 1, 2 and 4 of counsel's May 4, 2005, letter from Parks Canada on August 10, 2006. With respect to point 3 concerning sections 9(1)(d) and 9(2), Parks Canada proposed amendments to clarify the regulations. Counsel proposes to follow up with the agency concerning the proposed amendments and to keep the committee informed in the usual manner.

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

Hon. Members: Agreed.

Senator Moore: Just out of interest, where is Mingan Archipelago National Park Reserve?

[Translation]

Ms. Armstrong: It is on the north shore of the Gulf of St. Lawrence.

[English]

The Joint Chairman (Mr. Szabo): That shoreline is very long. Is it northeast or northwest?

Ms. Armstrong: It is along the northeast shore of the St. Lawrence River.

SI/2006-66 — ORDER AMENDING THE PRIVACY ACT HEADS OF GOVERNMENT INSTITUTIONS DESIGNATION ORDER

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

SOR/97-390 — CREWING REGULATIONS

SOR/2002-151 — REGULATIONS AMENDING THE CREWING REGULATIONS

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

SOR/97-391 — MARINE CERTIFICATION REGULATIONS

SOR/2002-150 — REGULATIONS AMENDING THE MARINE CERTIFICATION REGULATIONS

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

SOR/2001-32 — CONTROLLED GOODS REGULATIONS

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

Mr. Bernhardt: The items under ``Action Promised'' reflect 12 amendments to resolve concerns pursued by the committee. Of particular note, the promised amendment to the Controlled Products Regulations will remove a provision granting to the Minister of Public Works and Government Services the power to require persons to provide information in order to do a security assessment. The committee concluded that there was no authority for such a provision, and that this information would already be available from other sources in any event.

In addition to the proposed amendments, the Department of Transport has agreed not to collect certain fees under the Marine Certification Regulations pending the enactment of new regulations under the authority of the Canada Shipping Act, 2001.

SOR/94-750 — PLANT BREEDERS' RIGHTS REGULATIONS, AMENDMENT

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

SOR/95-174 — GOVERNMENT PROPERTY TRAFFIC REGULATIONS, AMENDMENT

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

SOR/95-177 — CUSTOMS SUFFERANCE WAREHOUSES REGULATIONS, AMENDMENT

(For text of document, see Appendix U, p. 12U:1)

SOR/2005-260 — ORDER AMENDING THE CANADIAN CULTURAL PROPERTY EXPORT CONTROL LIST

(For text of document, see Appendix V, p. 12V:1)

SOR/2006-345 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA POST CORPORATION ACT (MISCELLANEOUS PROGRAM)

(For text of document, see Appendix W, p. 12W:1)

Mr. Bernhardt: Under ``Action Taken'' are instruments making 32 amendments that had been promised to the committee.

SI/2006-109 — ORDER RESPECTING EX-GRATIA PAYMENTS TO CHINESE HEAD TAX PAYERS

SI/2006-133 — ORDER RECOMMENDING THAT EACH ENTITY LISTED AS OF JULY 23, 2006, IN THE REGULATIONS ESTABLISHING A LIST OF ENTITIES REMAIN A LISTED ENTITY

SI/2006-134 — ORDER RESPECTING EX-GRATIA PAYMENTS TO VETERANS INVOLVED IN CHEMICAL WARFARE AGENT TESTING

SI/2006-136 — ORDER FIXING NOVEMBER 27, 2006 AS THE DATE OF THE COMING INTO FORCE OF THE ACT

SI/2006-138 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE MICHAEL CHONG

SI/2006-139 — ORDER ASSIGNING THE HONOURABLE PETER VAN LOAN TO ASSIST THE MINISTER OF CANADIAN HERITAGE

SI/2006-140 — ORDER FIXING NOVEMBER 28, 2006 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2006-143 — ORDER FIXING DECEMBER 12, 2006 AS THE DATE OF THE COMING INTO FORCE OF CERTAIN SECTIONS OF THE ACT

SI/2006-145 — ORDER FIXING DECEMBER 15, 2006 AS THE DATE OF THE COMING INTO FORCE OF THE ACT

SI/2007-1 — ORDER FIXING JANUARY 1, 2007 AS THE DATE OF THE COMING INTO FORCE OF SUBSECTION 12(3) OF THE ACT

SI/2007-2 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE PETER VAN LOAN

SI/2007-3 — ORDER ASSIGNING THE HONOURABLE MARJORY LEBRETON TO ASSIST THE MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT

SI/2007-4 — ORDER ASSIGNING THE HONOURABLE JAY D. HILL TO ASSIST THE PRIME MINISTER

SI/2007-5 — ORDER ASSIGNING THE HONOURABLE JASON KENNEY TO ASSIST THE MINISTER OF CANADIAN HERITAGE

SI/2007-6 — ORDER ASSIGNING THE HONOURABLE GERRY RITZ TO ASSIST THE MINISTER OF INDUSTRY

SI/2007-7 — ORDER ASSIGNING THE HONOURABLE HELENA GUERGIS TO ASSIST THE MINISTER OF FOREIGN AFFAIRS, THE MINISTER FOR INTERNATIONAL TRADE AND THE MINISTER OF CANADIAN HERITAGE

SI/2007-8 — ORDER ASSIGNING THE HONOURABLE CHRISTIAN PARADIS TO ASSIST THE MINISTER OF AGRICULTURE AND AGRI-FOOD

Mr. Bernhardt: Finally, there are 17 instruments under statutory instruments without comment that have been reviewed by counsel and found to conform to all of the committee's criteria.

The Joint Chairman (Mr. Szabo): The report is accepted, thank you.

Finally, from time to time we have discussed having a committee education session. We have some visitors today from Australia. They suggested it would be useful to communicate with our counterparts to find out, over the summer break period as prescribed, whether there would be a preferred time in their calendar to have elected representatives participate in discussion and dialogue, which may also help us to deal with the cataloguing and storage issues.

There are some issues and I think that this committee is getting to the point where it needs to consider whether we will propose any plans for streamlining the processes which we undertake. Some of this has been in place for a long time. We may end up reaffirming we are on the best possible approach, determine there are other aspects, or find out if there are other developments in other jurisdictions that we should be aware of so that we could be properly prepared. Given that, hopefully, we could then make a formal request to the liaison committee for the appropriate funding. We could discuss at our next meeting or a subsequent meeting the representation to comprise the delegation.

There have been some concessions made by committees not to have all members travel every time they do something, with the exception of where it was felt that for all members to fully participate in the subsequent activities of the committee, those who would not have attended and not have participated in the exercise may be at a disadvantage. An example would be in regard to observation of the seal hunt. To send some but not all would certainly put some of the members at a disadvantage, not being able to have an opportunity to discuss with different stakeholders and to observe in fact what exactly is happening there.

We will have an opportunity to discuss. If we ultimately decide we want to arrange a visitation and discussions with our counterparts in another commonwealth jurisdiction, then we will also discuss the propriety of membership participation in that.

Once we start that process, we will raise it for a future agenda item. Could we have the information for the next meeting or the meeting subsequent to that?

Is there further business for the committee? There being none, our next meeting is May 3.

The committee adjourned.

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