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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue No. 44 - Evidence - November 22, 2018

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OTTAWA, Thursday, November 22, 2018

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:33 a.m. for the review of Statutory Instruments.

Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.

[English]

The Joint Chair (Mr. Albrecht): Thank you, committee members, for your patience. We had to change from our normal meeting spot because of some technical difficulties. Notices were sent out, but we don’t always check our devices as often as we should. And thank you to our staff for quickly rearranging things in a very satisfactory way.

We have a large agenda; it’s in front of you there. You all had a truck to bring it over.

Mr. Badawey, because you haven’t been here for a few weeks, I want you to know that we missed you.

ACCESSIBILITY OF MATERIALS INCORPORATED BY REFERENCE IN REGULATIONS (SF2015-1)

(For text of documents, see Appendix A, p. 44A:1.)

The Joint Chair (Mr. Albrecht): We’re going to start with our first agenda item, Accessibility of Materials Incorporated by Reference in Regulations. It’s a bit of a complicated file, so I will look to our general counsel for input.

Cynthia Kirkby, Acting General Counsel to the Committee: The first special agenda item relates to incorporation by reference, which is when regulations refer by name to other documents, such as other laws or technical standards and, as a result, those other documents become part of the law as if they had been reproduced in the regulations in their entirety.

In 2015, amendments relating to incorporation by reference were made to the Statutory Instruments Act. One of those amendments added a section that states that regulation-making authorities shall ensure that a document incorporated by a reference is accessible.

The joint committee has taken the position that in order to be considered accessible, documents incorporated by reference must be available in both official languages and free of charge, and all previous versions of documents must be available as well.

The Department of Justice, which provides legal advice to regulation-making authorities as amendments are prepared, has a much more flexible view of the accessibility requirement. Members were not satisfied with the department’s position and asked the department to provide, by the end of 2017, a list of all documents incorporated by reference in federal regulations, with the name of the regulations they are incorporated in, the official languages they’re available in and their cost, if any.

The department did not meet the specified deadline, and by the time officials appeared before the committee in April 2018, they had provided a verified list of documents incorporated by reference in only approximately 1 per cent of federal regulations.

Members were not satisfied with this or with the answers provided by witnesses at that appearance, so the joint committee tabled an additional report on the topic of incorporation by reference and advised the Department of Justice that it wished to have the full list of incorporated documents by August 30, 2018.

Since the last time this file was considered, the government tabled its response to the committee’s latest report and, as members can see, a large part of that response is an excerpt from the testimony of the witnesses before the committee.

In addition, a letter from the department was received on July 30, referring in turn to the government response to the committee’s report and advising that rather than developing the list of incorporated documents, it intended to focus its efforts elsewhere. As a result, it remains unclear how many documents incorporated by reference in federal regulations are available in only one language and/or only at cost.

There is an indication that the Department of Justice is working with Treasury Board to develop policy guidance on the use of incorporation by reference and that an update on this policy work will be provided by the end of the year.

Members may wish to await this update to see if the resulting policy guidance will better reflect the committee’s concerns about accessibility, but it seems the department has no intention of providing the list of incorporated documents.

An additional issue on which guidance would be appreciated is the committee’s view on whether unilingual provincial legislation incorporated by reference into federal regulations is accessible. It does not appear that this specific issue has been considered to date, but it has arisen recently during the review of regulations.

If bilingualism is an aspect of accessibility, it is not clear in principle why unilingual provincial legislation should be treated differently from, for example, a unilingual technical standard. That said, there may be additional factors that would shape the committee’s thinking on that point.

To summarize, guidance is being sought on three points. First, does the committee wish to distinguish between unilingual provincial legislation and other unilingual documents incorporated by reference in regulations?

Second, is the committee content to await an update by the end of the year on the policy work being undertaken by the Department of Justice and Treasury Board to see if it addresses any of the concerns about accessibility?

Third, does the committee wish to take any action in response to the fact that the Department of Justice has again failed to provide the list of incorporated documents within the established timeline and seems to have no intention of providing it at all?

The Joint Chair (Mr. Albrecht): Thank you. If I understand your summary, you basically put the issues in reverse order. You’re asking us to address, first, question number 3 on page 2 regarding the unilingual provincial legislation.

How do members feel about waiting until we get the other two parts dealt with at the end of this year to see whether or not we proceed with action on the unilingual issue?

Mr. Badawey: To answer your question, yes, but I would go a step further in sending off a letter with our expectations attached as outlined by counsel with respect to the distinction between the unilingual. Number 2 is that we expect the update to be completed by the end of the year as outlined; and three, that if not, further action ought to be taken.

I’d be very specific in terms of our expectations.

[Translation]

Mr. Dusseault: I think that it’s important to mention that, yes, we are waiting for a directive from Treasury Board on regulations, but it would be the least we could do as a follow-up to ensure that the directive is complied with. If they don’t even have a list of all of the regulations with all of the incorporations by reference, how can they ensure that their directive will be followed by the departments?

I think we should also highlight that point in any future correspondence, in order to specify that it is all well and good to develop a new directive, but if there is no follow-up, what is the point of the directive? Such a list of incorporations would allow for a follow-up to see to it that with regard to accessibility, all expectations and directives are respected. Otherwise, they serve absolutely no purpose.

[English]

The Joint Chair (Mr. Albrecht): So you are arguing that we should maintain the strong position that we do expect the full list of all items incorporated by reference.

Mr. Dusseault: Especially if we want to follow up and see that they respect the directive.

The Joint Chair (Mr. Albrecht): Committee members, how do you feel about that? Mr. Dusseault is suggesting we stay firm on our expectation that the entire list of documents incorporated by reference be provided to us.

Mr. Benzen: I agree. I think they should provide the whole list. It’s unacceptable that we don’t have a list. If they don’t provide it, what do we do? We can’t say bring the minister here; he’ll say it’s going to take 18 years to make the list. We’re not going to do it.

We can’t disallow that. What are we going to disallow? What is our position if they say no?

In this digital age, this whole idea of documents incorporated by reference was they didn’t want to type the document up again with this longer wording. But with all our Word documents and our digital databases, this should be easy to cut and paste, put into things. It’s easy to print documents and to have digital files. I think they should eliminate this. There shouldn’t even be documents incorporated by reference anymore.

How do we know if they’re static or dynamic? How do those documents change? Do we know which ones are static and dynamic in terms of when they update those other documents?

A lot of stuff is hidden behind the scenes, and I think we should find a way to eliminate it altogether.

At any rate, my question is: How do we enforce it if they keep denying it?

Ms. Kirkby: Generally, when they’re incorporated in a dynamic fashion, it will say “the document as amended from time to time.” So that’s how it’s conveyed, that this is a dynamic incorporation by reference as opposed to a static incorporation by reference. The issue that arises then is that, I think, they often lose track of what the amendments to the incorporated documents are.

There was also a discussion at the previous session that if it’s something that has a cost and the cost increases, there’s no tracking of that either. So you might have a document where at first it’s $20 and then increases to $80. Is that still a reasonable cost? It’s just not tracked.

I was at a conference on legislative drafting where they were talking about using artificial intelligence semantic analysis to figure out the use of incorporation by reference in federal regulations. It’s possible that there might be a way to help make the list using that technology, which is optimistic. It might be helpful to inquire on that point as well.

Mr. Benzen: If they say they’re not going to give you the list, we can’t make them do it.

Ms. Kirkby: Right. I think the committee has pretty much gone through all of the general powers and expectations we put on that one pager. We’ve tabled two reports and we have called witnesses.

The Joint Chair (Mr. Albrecht): To follow up on Mr. Benzen’s suggestion that we no longer have incorporation by reference, the only way that can happen is to amend the Statutory Instruments Act. Am I correct?

Ms. Kirkby: That would be going in the opposite direction of what Parliament did in 2015, which was to expand the use.

The Joint Chair (Mr. Albrecht): It’s suggested that we write back to the department indicating that we do expect the full list, and we also expect them to clarify why there would be special consideration given to the provincial bodies in terms of incorporation by reference.

Ms. Kirkby: That was actually the question we were hoping for guidance from the committee on. There isn’t clearly a distinction being made between provincial legislation and other technical documents. So the question was whether the committee wishes these things to be treated differently. When we review regulations, if we come across unilingual provincial legislation, does the committee wish that the issue be raised?

The Joint Chair (Mr. Albrecht): Raised or dealt with?

Ms. Kirkby: Raised with the department.

Mr. Benzen: Yes.

The Joint Chair (Mr. Albrecht): “Yes” in terms that it’s not acceptable to have the unilingual?

Mr. Benzen: That’s right.

The Joint Chair (Mr. Albrecht): We always expect full availability in both official languages?

Mr. Benzen: Correct.

The Joint Chair (Mr. Albrecht): Is that the wish of the committee?

It seems a reasonable that if we’re saying that we’re a bilingual country, each province would be able to provide those in both official languages.

Ms. Kirkby: There are definitely provinces that don’t currently have it available in both languages.

The Joint Chair (Mr. Albrecht): It would be the department’s responsibility to ensure that it now becomes available in both official languages, if we follow through with it.

All agreed with that direction?

Hon. Members: Agreed.

The Joint Chair (Mr. Albrecht): I see general agreement. Thank you very much.

Ms. Kirkby: Clear guidance. Thank you.

The Joint Chair (Mr. Albrecht): We will move on to Item No. 2 on our agenda.

CABINET DIRECTIVE ON REGULATIONS (SF2017-2)

(For text of documents, see Appendix B, p. 44B:1)

Penny Becklumb, Counsel to the Committee: The Cabinet Directive on Regulation is a document administered by Treasury Board Secretariat which sets out the requirements that federal departments and agencies have to follow in order make regulations.

From 2012, until this past September 2018, the old Cabinet Directive on Regulatory Management was in force. With a view to revising and replacing this document, in the fall of 2017, Treasury Board Secretariat published a proposed new draft Cabinet Directive. At the same time, they launched an online consultation seeking feedback on the draft from interested parties.

As part of that consultation, the joint committee submitted 11 comments and Treasury Board Secretariat responded, thanking the joint committee for its comments and stating:

. . . you can rest assured that the Standing Committee’s observations and suggestions will be brought to the attention of Ministers as the draft Cabinet Directive is further developed.

The final version of the Cabinet Directive on Regulation was published this summer, in July, and it came into force in September. Included in your notes is a table presenting the extent to which the committee’s comments are reflected in the final version. In summary, the committee submitted 11 comments. One comment is reflected in the final Cabinet Directive. Three more comments are reflected in part, and seven of the joint committee’s comments are not reflected in the final Cabinet Directive.

As an aside, I should point out that one of those seven comments relating to the MARs process is partially reflected in a policy document that was later adopted.

After the Cabinet Directive came into force this past September, the President of the Treasury Board wrote to the joint committee stating that “the thoughtful comments provided by the committee were closely considered in the development of the final Cabinet Directive.”

The committee had requested an explanation from the president for any comment not reflected in the final Cabinet Directive, but no such explanation was provided. The committee had also suggested to the president that it would consider inviting witnesses to discuss why the committee’s comments weren’t included in the Cabinet Directive.

The committee may now consider whether it wishes to pursue this matter either through correspondence with the Treasury Board secretariat or by calling witnesses. If the decision is made to pursue the matter, members may consider whether they’d like to narrow down the issues and only pursue the more significant comments that are not reflected in the Cabinet Directive.

The Joint Chair (Mr. Albrecht): I think we need clarification from counsel as to which are the more significant. I would assume all 11 were significant and would hope that we get an explanation on all seven that were excluded entirely, at the very least. If they don’t give us that explanation, bring them in as witnesses.

Mr. El-Khoury: I agree with what you have said, Mr. Chair. And due to the fact that seven of the items we suggested were not taken into consideration, I propose to send a letter to them asking for the reason why they did not integrate our items. Based on their answer, we’ll go for the second step.

The Joint Chair (Mr. Albrecht): Asking for explanation and if we don’t receive it, ask them to appear before the committee.

Is there general agreement on that direction?

Ms. Romanado: Maybe you can clarify this for me. Whenever this committee puts forth recommendations and/or suggestions and comments, and they are thoughtfully rejected, would it not be normal procedure that they would explain why in terms of responding?

It seems like we’re having to chase the response. My concern is that if we issue a letter saying, “Can you please respond,” and they don’t give a response, we have to invite them to give the response. In terms of normal practice, would they not normally tell us why?

The Joint Chair (Mr. Albrecht): Normally they would tell us why. We’ve actually asked them to tell us why, which they have ignored. This next letter will say that we want a response by a certain date, failing which they will appear before the committee to explain the rationale for not including those seven items. That’s what I think Mr. El-Khoury was suggesting.

Ms. Romanado: I’m suggesting we invite them. We’ve already written to them and asked, have we not?

The Joint Chair (Mr. Albrecht): We didn’t threaten the meeting. Maybe we did?

Ms. Becklumb: Before the final draft was published, the joint chairs wrote to the president saying that, based on the “What We Heard” document, it seemed that the committee’s comments hadn’t been heard. We said that if the committee’s comments weren’t incorporated, the committee would appreciate an explanation or consider inviting witnesses.

The Joint Chair (Mr. Albrecht): My feeling is that if we write a letter, we can save an hour of our time by not having witnesses, if they respond. If they don’t, we have already in place that they will be called. We don’t need to meet again to decide whether they will be called. Counsel will proceed with calling them. That’s the direction, and it is a little different than before.

Mr. Ehsassi: I don’t understand why we would want them to appear because every single time we’ve had witnesses appear, they just skate around issues and they’re not really responsive.

I think the better approach is to try, to the best of our abilities, to get them to correspond with us and explain why none of those —

The Joint Chair (Mr. Albrecht): I see general agreement on that.

Let’s proceed in that way. All agreed?

Ms. Becklumb: Is the letter to be sent to the Treasury Board Secretariat or to the president?

The Joint Chair (Mr. Albrecht): Both, and from the joint chairs. The letter should be clear that failing a response by January 31, they will be called as witnesses early in the new year.

Mr. El-Khoury: Absolutely.

The Joint Chair (Mr. Albrecht): Item No. 3 on our agenda is under the heading “Letters To And From Ministers”

SOR/2016-281 — CRITICAL HABITAT OF THE ROSEATE TERN (STERNA DOUGALLII) ORDER

SOR/2017-10 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

SOR/2017-59 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

SOR/2017-112 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

SOR/2017-229 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

SOR/2018-10 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

(For text of documents, see Appendix C, p. 44C:1)

Ms. Becklumb: This item relates to six orders, all of which were made under the Species at Risk Act. There are three issues that require direction from the committee today. These three issues were raised with the minister in a letter sent by the joint chairs this past spring. The minister responded on June 1, and then she sent the joint committee a second follow-up letter with relevant statistics on October 1.

Because the three issues are somewhat complex, I propose to speak to them one at a time to get the committee’s direction before moving to the next, if this is acceptable.

The Joint Chair (Mr. Albrecht): Sounds great.

Ms. Becklumb: I want to mention two acronyms; the first is SARA. SARA is short for Species at Risk Act.

The other term is COSEWIC, which stands for the Committee on the Status of Endangered Wildlife in Canada. COSEWIC is an independent scientific committee of experts and is responsible for carrying out the assessments of species to determine whether they are at risk.

For issue 1, you may wish to look at the diagram in your notes. It sets out the SARA process. Issue 1 relates to step 2 on this diagram. After COSEWIC completes an assessment of the status of a species, it must provide a copy of the assessment to the minister, who then has 90 days to publish what is commonly referred to as the minister’s response statement.

The issue is that the minister appears to be routinely missing this 90-day timeline to publish a response statement. Specifically, for the 56 species added to the list last year and at the beginning of this year, it took an average of 11 months for the minister to publish a response statement after the date of the assessments.

The joint committee raised this issue with the minister in the spring. In her letter dated June 1, the minister submits that the 90-day time limit is not routinely being missed because, according to the department, it doesn’t start to run until the minister officially receives the assessment, which happens only once a year, typically in the fall, when the minister receives COSEWIC’s annual report that includes all of the assessments done that year as a batch.

Under this interpretation, the time limit was missed for only two of the 56 species and only by a matter of a few days.

However, the minister’s interpretation of when the 90-day time period starts to run is hard to square with the plain wording of section 25 of SARA. Section 25 requires that COSEWIC provide a copy of the assessment to the minister when COSEWIC completes the assessment, not at the end of the year in an annual report.

In summary, it seems that the minister is not receiving assessments from COSEWIC promptly after COSEWIC completes the assessments. Accordingly, it may be worth sending a letter to COSEWIC asking them about their process in order to be in a better position to assess whether the statutory requirement is being met.

Mr. Badawey: Who would send that letter?

Ms. Becklumb: It could be the joint chairs or it could be counsel on behalf of the committee.

Mr. Dusseault: That was my suggestion, sending a letter to COSEWIC to remind them about section 25 of the act and tell them that we don’t think doing it in the annual report meets the standards in the act, or if they think it is, they should explain to us how they think it respects the spirit of the law.

Mr. Scarpaleggia: Just so I’m clear, there are two issues here. One is that the minister considers that COSEWIC has reported only at the level of when it receives the annual report.

With the report from COSEWIC, you’re telling me it comes through the annual report but also it is sent separately after the study is completed?

Ms. Becklumb: According to the statute, section 25 of SARA requires COSEWIC to give a copy to the minister when COSEWIC completes the assessment.

Mr. Scarpaleggia: Do they do that?

Ms. Becklumb: That’s the question. The minister says she officially receives it when she gets the annual report. But if you look at the requirement to provide an annual report, it doesn’t even require COSEWIC to give that report to the minister.

Mr. Scarpaleggia: Is COSEWIC issuing an annual report, on the one hand, but also sending the study almost immediately once completed?

Is the minister getting the report through two channels? We don’t know that?

Ms. Becklumb: We don’t know that. The minister’s letter says that she officially receives it when she gets the annual report. She didn’t speak to whether she gets it unofficially earlier. It’s announced publicly earlier, but she says she doesn’t officially receive it until she gets that annual report.

Mr. Scarpaleggia: When you say it’s announced publicly, COSEWIC is sending it once it’s completed outside of the annual report?

Ms. Becklumb: Not necessarily sending it. Based on the minister’s letter, it states that COSEWIC publicly announces it at its biannual meeting.

Mr. Scarpaleggia: The law says COSEWIC is supposed to submit right after the completion of each study?

Ms. Becklumb: It’s supposed to. When COSEWIC completes the assessment of the status of a wildlife species, it must provide the minister with a copy of the assessment.

Mr. Scarpaleggia: We don’t know if they’re doing that?

Ms. Becklumb: Correct.

Mr. Scarpaleggia: I think some clarification is needed.

The Joint Chair (Mr. Albrecht): How do we know 11 months elapsed if we don’t know the starting date? It says on average 11 months.

Ms. Becklumb: The assessments are posted on the website. You can see the date, so I assume that’s the date it was completed.

The Joint Chair (Mr. Albrecht): That’s how we know it’s completed, but we don’t know whether or not the minister has received a personal copy.

Mr. Scarpaleggia: The letter says that COSEWIC is supposed to send her a copy, not post it, but send it.

Ms. Becklumb: The law says that COSEWIC is supposed to give the minister a copy — providing it to the minister — when it completes the assessment.

Mr. Scarpaleggia: Whether it’s posted or not doesn’t really matter; they’re supposed to send it.

Ms. Becklumb: No. At the same time, COSEWIC is required to include it on the public registry. It’s supposed to be posted and given to the minister once it is completed.

Mr. Scarpaleggia: From the minister’s point of view, it’s supposed to be sent by mail to her?

Ms. Becklumb: The minister says when she gets the annual report at the end of the year then she has received it. The law says COSEWIC is supposed to give it to her when it completes the report.

Mr. Scarpaleggia: The question is, are they giving it her?

The Joint Chair (Mr. Albrecht): We are going to clarify that in the letter.

Mr. Scarpaleggia: Perfect. Then I agree.

The Joint Chair (Mr. Albrecht): All agreed? We’re going to clarify with COSEWIC whether the minister was actually sent a personal copy of the species report.

The Joint Chair (Senator Day): If not, we would expect it.

The Joint Chair (Mr. Albrecht): That’s number one. Thank you for raising these separately.

Ms. Becklumb: Moving to the second issue, if members still have that graphic in front of you, the second issue relates to step 3 in the process. You’ll see that there’s no solid line leading to step 3, which represents what the committee had earlier determined to be an unintended gap or a defect in the SARA process. SARA does not include a provision which ensures that after a species is assessed to be at risk, the Governor-in-Council makes a decision within nine months of whether or not to protect the species under SARA. This has led to excessively long delays in the Governor-in-Council deciding whether to protect individual species at risk under SARA.

For the benefit of new members, I’m happy to provide background information for understanding this gap in the law, or if the explanation set out in the notes is sufficient, I can skip to the latest developments on the file.

The Joint Chair (Mr. Albrecht): I think they’re pretty clear.

Ms. Becklumb: Skip them, okay.

When the joint committee last considered these files in March of this year, the committee instructed the joint chairs to send letters to the chairs of the House of Commons and Senate committees responsible for the environment and for fisheries to bring the gap in SARA to their attention. Those letters were sent in the spring, but to date, they have not resulted in any of those four committees embarking on a study of the issue.

The committee also instructed the joint chairs to write to the minister. The minister’s response to this letter, dated June 1, 2018, doesn’t explicitly agree with the joint committee that there is a gap in SARA, but it does acknowledge that the length of time that listing decisions have taken over the past number of years has not been consistent with SARA’s stated purposes and is not in line with the spirit of the act.

Accordingly, the minister has instituted a new policy and a timeline. Starting this fall — essentially, right now — the minister will seek to obtain listing decisions from the Governor-in-Council for terrestrial species within 24 months and for aquatic species requiring significant consultations within 36 months.

When these timelines cannot be met, the department will publish on the SARA public registry reasons for the delay and the next steps. Also the SARA annual report will include a section with this information in summary form.

That’s the current status of Issue No. 2. Is the committee satisfied with the new policy, or would you like to pursue the matter further?

The Joint Chair (Mr. Albrecht): What is the committee’s response? Remember, the objective of SARA is to protect species at risk. Is the three-year timeline they’re suggesting adequate?

Mr. Dusseault: What I understand is that they are more transparent when they don’t meet the timeline; they will publish it.

Ms. Becklumb: They said they are going to publish reasons why they haven’t met the two-year or three-year timeline they’re proposing.

Mr. Dusseault: Where do the two-year and three-year timelines come from?

Ms. Becklumb: That’s the department’s policy they have established.

Mr. Dusseault: But the law says nine months.

Ms. Becklumb: The law says nine months, so that seems to have been lost in the shuffle. Because there’s no start date to the nine months, it is not being used at all.

Mr. Dusseault: So it’s in the law, but the department says, “We prefer the two- and three-year timelines”?

Ms. Becklumb: Yes.

The Joint Chair (Mr. Albrecht): Do we consider that acceptable, committee members, or do we want to ask them how they can rationalize the fact they’ve avoided the intent of the law at nine months and, rather than ignoring it, seek a change in the law?

Mr. Scarpaleggia: Based on my previous membership on the Environment Committee, I believe the implementation of SARA has been an ongoing problem. We need a rationale.

The delays in responding to COSEWIC or the delays in creating habitat protection plans are notorious when it comes to SARA, as far as I understand.

I think we need to ask them why they are proposing two and three years when the spirit of the law is nine months. We need to have a reason in terms of maintaining accountability.

Mr. Badawey: Counsel has made a comment respecting a start time. The reason they’re saying two or three years versus nine months is because they don’t really have a start time. Can you explain that?

Ms. Becklumb: The law requires the Governor-in-Council to make a listing decision — that is, whether to protect a species under SARA — within nine months of receiving the assessment. However, the law does not require anyone to give the Governor-in-Council a copy of the assessment, so that nine-month period never starts to run. Rather, it doesn’t start to run, in practice, until the minister decides to make it start to run and gives a copy to the Governor-in-Council.

Mr. Badawey: Wouldn’t that be what we want to target?

Ms. Becklumb: Certainly. Ten years ago, this committee presented a report in Parliament saying there’s a gap in the law and it should be addressed. At the time, the House of Commons Standing Committee on Environment and Sustainable Development was about to start a study on SARA, so it was left to that committee to deal with the gap.

Mr. Badawey: They didn’t do it.

Ms. Becklumb: The committee never presented a report following their study, so the gap is still there.

A private member’s bill was introduced that would address the gap, but it’s at first reading, and it doesn’t look likely to advance.

Mr. Badawey: May I suggest we start with this: that the report go to the minister. That way we can establish a start time and they can abide by the law.

Ms. Becklumb: You’d like a report in Parliament, or would you like to send a copy of our report 10 years ago?

Mr. Badawey: Ten years ago? You might want to wipe the dust off of it.

Ms. Becklumb: It’s still relevant; it’s still the same.

The Joint Chair (Mr. Albrecht): For clarification, I wasn’t on this committee at that time.

Mr. Badawey: It may be a start to send that report and the expectation that came from that.

Ms. Becklumb: To the minister?

Mr. Badawey: Yes.

Ms. Becklumb: Asking the minister to introduce a bill that would address the statutory deficiency?

Mr. Badawey: I’ll ask this question first: Would the committee members prefer to have a copy of that and read it first? Hopefully it won’t take us 10 years to read. Would the committee members like to see that before we send it out, or should we send it out right off the bat?

The Joint Chair (Mr. Albrecht): If counsel has indicated that the report happened, I’m willing to accept that and move head with your suggestion.

Ms. Becklumb: I’ve got it right here.

The Joint Chair (Senator Day): Have you had it there for 10 years?

Mr. Badawey: Why don’t we take a look at the report first, and then we’ll give direction from there.

Ms. Becklumb: Would you like us to bring this item back for consideration in the new year?

Mr. Badawey: That would be fine. I just don’t feel comfortable until I see the report.

The Joint Chair (Mr. Albrecht): Let’s have further discussion before we finalize our direction.

[Translation]

Mr. El-Khoury: In my opinion, since the timelines in the act were not complied with, we could simply send a letter highlighting the importance of resolving this situation, and then we will see.

Ms. Becklumb: To the minister or to the department?

Mr. El-Khoury: Yes.

Ms. Becklumb: To the minister?

Mr. El-Khoury: Yes.

[English]

The Joint Chair (Mr. Albrecht): We have a few suggestions on the floor now.

Mr. Shields: I would agree that we need to clarify what it is we’re talking about. Is it a gap? If it was identified 10 years ago, is that still current? We need to go there first, because I don’t think we’ve clarified a direction based on what we know.

The Joint Chair (Mr. Albrecht): You’re arguing that we don’t send the letter until we clarify the actual report?

Mr. Shields: You bet.

Mr. Dusseault: I don’t know if my memory serves me right, but did we send something to the Environment Committee on this file, and did they respond?

Ms. Becklumb: Yes.

No, they never responded. I was following up with the analysts, and they have not adopted a motion to study the issue. It’s not out of the picture, but to date they have not decided to study the issue.

The Joint Chair (Mr. Albrecht): Neither have they responded to our letter suggesting that they do. They haven’t said “yes” or “no”; they’ve just ignored it. That’s my understanding.

Ms. Becklumb: Correct.

Mr. Dusseault: A couple of months ago?

Ms. Becklumb: It was sent to the chair of the committee, not the whole committee. It wasn’t necessarily distributed to the whole committee. It was sent to the chair to each of the House of Commons and Senate committees responsible for environment and fisheries, which is four committees.

The Joint Chair (Mr. Albrecht): That was March 29, 2018.

I’m hearing general consensus that we would like to see the report to make sure we know what was decided 10 years ago before we proceed with this second part of this agenda item. Do I see general agreement with that?

Mr. El-Khoury, you had a slightly different suggestion. Are you comfortable with this?

Mr. El-Khoury: No problem.

Ms. Becklumb: We have one last issue on agenda Item No. 3. The third issue relates to a later step in the SARA process, after the critical habitat of a species at risk has been identified. Subsection 58(5) of SARA provides that for critical habitat that is on federally administered lands that are not a protected area — such as a national park — the minister must make a protection order within 180 days after the critical habitat is identified. The first such order, protecting the critical habitat of the Roseate Tern, was made in 2016, exceeding the 180-day deadline by some nine and a half years.

The department explained that this was its first critical habitat protection order on federally administered land, so several important legal and policy issues needed to be resolved before they could bring it forward.

The committee accepted this explanation but exchanged further correspondence with the minister, expressing the committee’s expectation that statutory deadlines will be met in the future and asking about any backlog of critical habitat orders that have yet to be made and that will have exceeded the 180-day time limit.

The minister responded in letters dated June 1 and October 1, 2018. The essence of her response is that, yes, there is a backlog of critical habitat protection orders to be made that will have exceeded the statutory time limit. Specifically, orders are now overdue for 82 species. The table in your notes provides more information about the extent to which they are overdue, measured in years.

The minister’s letters provide some information about the department’s new plan to address the backlog. Funding was sought as part of Budget 2018, and the department is now building capacity and redesigning processes to prepare, consult on and issue these orders more efficiently. Specifically, it plans to address the backlog of 82 species by March 2023, if not earlier. The committee may now consider whether it’s satisfied with the minister’s response on how the department is going to handle the backlog.

On a related point, note that the minister’s letter doesn’t specify whether the department is going to meet the 180-day statutory deadline to make critical habitat protection orders for species that aren’t presently in the backlog but for which orders are going to be required in the future.

If the committee wishes, a letter could be sent to the department asking about this point.

The Joint Chair (Mr. Albrecht): I think we will definitely, at the very least, want to send a letter before March 2023.

Committee members, what are your suggestions?

Mr. Scarpaleggia: It’s not meeting the deadline, but what’s the recourse? It’s basically a budget issue. You have to have capacity to make these plans and to consult.

I don’t know what the recourse is for not meeting the deadline. I suppose it’s a good thing that they have established a deadline, but I think your question is a good one: What about the plans that are forthcoming? Will they meet the 180 days, or will they just put them at the tail end of all the other 82 that they have to get done first? What is the approach going forward?

The Joint Chair (Mr. Albrecht): We’ll include that in the letter.

Mr. Dusseault: For clarification, if we take the draft, what I understand is between step 3 and step 7, there was a delay of nine years.

Ms. Becklumb: It’s not clearly represented on this graphic because it starts after the critical habitat is identified. That can be identified either in the recovery strategy or the action plan. So the 180-day timeline starts around step 5 or step 6.

Mr. Dusseault: In particular, do you know if at some point COSEWIC was at step 8 and reassessed, and nothing had been done by the government in the 10-year period?

Ms. Becklumb: Protection of critical habitat is just one of the means of trying to protect the species. There are other ongoing activities. Prohibitions are put in place and then there are various projects to try and rehabilitate a species.

It doesn’t necessarily hold up the whole process. It’s just one aspect.

Ms. Romanado: I want to make sure I understand. What is the actual impact to these species if the deadline is missed? For instance, I know Mr. Badawey is personally interested in the Dusky Dune Moth. The date this was supposed to be in was June 20, 2016. Since we’ve now passed that, what are some of the ramifications for these species had the deadline not been missed? I want to understand what the ramifications are.

Does it mean that this species is now not protected? In the event something happens and we haven’t classified it as a protected species and it gets wiped out, I’m trying to understand the impact on the actual species of us not meeting that, not on the legislation or procedures.

Ms. Becklumb: That species will already have been listed. We won’t get to this stage unless the Governor-in-Council already made that decision to list it, that nine-month problem.

This step arises at section 58, which states:

. . . no person shall destroy any part of the critical habitat of any listed endangered species . . . .

But this is only for species under federal jurisdiction, so we’re talking about a limited number of species.

This provision, the prohibition against destroying critical habitat, only comes into effect if the minister makes an order bringing it into effect. This is the order which is late. So for that moth, until that order is made, there’s no prohibition against destroying its critical habitat.

Ms. Romanado: Thank you for the clarification. It’s helpful to understand what could happen with the delays. It’s helpful to get that.

The Joint Chair (Mr. Albrecht): That’s the bottom line. It’s important we get to that point.

Mr. Badawey: Then it’s a domino effect. When you have, for example, developments happening in municipalities, how do they determine which habitats can be destroyed in order to allow the development to proceed or not?

Ms. Becklumb: That’s a great question. If they’re expecting one of these orders to be made which should have been made years ago, I guess there’s uncertainty for them whether it’s going to be made and it will be prohibited to destroy this critical habitat. But it hasn’t been made yet. Currently, is it okay to destroy the critical habitat?

Mr. Badawey: That’s what I’m getting at, so as not to hold up the development. If, in fact, it has been made, the development can proceed. But if it hasn’t, is going to be or is planned to be, then would that hold up the development?

Ms. Becklumb: Potentially. It could create uncertainty for them whether it is going to be made, whether they should proceed in anticipation it won’t be made, or that it will be made and they don’t proceed. I guess there’s uncertainty.

Mr. Badawey: Thank you.

The Joint Chair (Mr. Albrecht): I am going to ask general counsel to comment.

Ms. Kirkby: I want to clarify. Tying it back to the scrutiny of criteria, the issue relating to the scrutiny criteria is ensuring compliance with the law. The general concern is that it does a disservice to respect for the law if legislated statutory timelines are not being met.

If you cannot meet a legislated timeline, then from a legal perspective the appropriate recourse is to seek an amendment to the law to give yourself the time that you need. The appropriate recourse is not to flout the timeline or to ignore the existence of that timeline, because that does a disservice to respect of the law. To tie it back to the scrutiny criteria, that’s the legal issue.

The Joint Chair (Mr. Albrecht): So we’re dealing with a legal issue. But as parliamentarians who wear two hats, we’re also concerned about the implementation of the protection of species at risk.

Mr. Shields: This is on federally regulated land.

Ms. Becklumb: This is only federally administered land, but not protected areas.

Mr. Shields: But it’s on federally regulated land, so we understand where the piece of property is that we’re dealing with.

Getting back to what Harold was getting at, if a species at risk is identified, no matter where it is, developers can’t go there. It’s identified and it’s known. If developers want to go in there and we’re talking federal land, which makes regulation more difficult, the species are protected once they are identified.

To go back to Harold’s comment, this is a legal thing we’re talking about. The protection happens once they’re identified and they’re on that property. That all becomes part of the protection when you deal with the question of developers. They are protected once they’re identified. For anybody who wants to do a development, once that species is identified in that area, it’s protected. This is a legal question.

Harold, you were talking about law. If you’re getting into the environment, once they’re identified, they’re protected and you’re not disturbing them. Let’s clarify that and go back and deal with the actual legal issue we’re talking about.

Ms. Becklumb: Yes.

Ms. Romanado: I want to clarify. If they are being protected already, as soon as they’re identified, is that why it’s taking so long? Is it because there’s no onus on going forward and getting the official order?

The Joint Chair (Mr. Albrecht): With the order.

Ms. Romanado: Exactly. I’m wondering if that’s motivating or causing the lack of urgency in terms of giving the order. I want to make sure I’m understanding correctly. As soon as it’s listed and the species is protected, is the habitat protected?

Ms. Becklumb: Under the law, under the Species at Risk Act, no.

Ms. Romanado: That’s why we need the order, to protect not only the species but the habitat.

Ms. Becklumb: To protect the critical habitat. But it’s very limited. It has to be federally administered land, not in a protected area. And we’re not talking about aquatic species, either, because that was dealt with earlier on a different file.

There are other obligations which we haven’t investigated. What about migratory birds and protecting the critical habitat on protected national parks and the like? We haven’t even dealt with that.

Mr. Dusseault: I thought it was federally regulated species, not necessarily on federal land.

Ms. Becklumb: This particular obligation, which arose in respect of the Roseate Tern, was under this one specific provision of the law, subsection 58(4), but there are other obligations in the Species at Risk Act to protect the critical habitat of species under federal jurisdiction, which arise under different sections and this committee has not pursued because they haven’t yet come up.

So there’s a big question: What about migratory birds, which are under federal jurisdiction and which are not on federally administered land? There is an obligation to protect their critical habitat within 180 days under subsection 58(5.2) but I haven’t seen an order doing that, so there’s a question about their protection.

What about species that are in protected areas, like national parks and wildlife sanctuaries? That order is supposed to be made within 90 days. We don’t know whether it is being made.

We have aquatic species under Fisheries, and we dealt with that last year. They also were not meeting the deadline. Then there are all the species under provincial jurisdiction, which we don’t look at for the most part.

Mr. Badawey: The more discussion we’re having, the more questions that are popping up in my mind. It hits home because we do have federal lands in my riding and in my city. There is a situation where migratory birds, for example, settle into that area. My question, therefore, is if they’re not addressed here, which you tell me they’re not because we’re only addressing these, and they are expected to be protected as a migratory bird but there’s nothing attached to the habitat, then where is the enforcement?

Ms. Becklumb: I guess that’s the question. There are different prohibitions that arise in the law, some against harming, harassing or killing the species at risk, that type of thing. That’s a different issue.

The issue arising here is protecting its critical habitat.

Mr. Badawey: Which protects them.

The Joint Chair (Mr. Albrecht): Ultimately.

Ms. Becklumb: It’s critical. It’s the habitat that they need to survive.

Mr. Badawey: Ultimately, the question is that if this continues the way it is, we can’t enforce or there’s no instrument to then apply to that land with respect to its habitat.

Ms. Becklumb: There’s no order protecting that habitat, correct. There’s no order making it illegal to destroy that habitat.

Mr. Badawey: Got it. That’s the answer I needed to hear.

The Joint Chair (Mr. Albrecht): I wonder if counsel could remind us as a committee where we have gone with agenda Item No. 3 in terms of further action. Do we have a sense of direction?

Ms. Becklumb: We’re writing a letter to the department, I believe, asking for their plan regarding whether they’re going to meet the 180-day timeline for all future orders.

It sounds like perhaps the committee is accepting the minister’s plan to catch up on the backlog.

The Joint Chair (Mr. Albrecht): I think there is a sense of disappointment with the 2023 timeline.

Is it fair for the committee to express our dissatisfaction with 2023? Can we ask them to speed that up, obviously taking into consideration available resources, but that we would expect we’d do all we can to meet that earlier, but also to follow through on that other point?

Ms. Becklumb: Okay.

The Joint Chair (Mr. Albrecht): General agreement?

Ms. Kirkby: I have something similar to what I said earlier, which is the 2023 plan is to make the order for the ones they have missed. But in terms of the legal issue, they haven’t met the statutory requirement. They’ve already missed the statutory requirement for those, so in terms of this particular committee’s mandate, it might be slightly beyond what we have.

The Joint Chair (Mr. Albrecht): Would you summarize? It’s a good point. I think because we wear multiple hats on this committee, it’s hard for us to address the legal part from the environmental part.

Ms. Kirkby: I can see where the concern is about making sure that future orders meet the 180-day timeline. We would be well within our mandate to ask for their plan for those where they still have the possibility of satisfying the legal requirement.

The Joint Chair (Mr. Albrecht): You’re suggesting it would not be wise to include the disappointment with the other? I’m sensing a bit of caution on that, which I respect. Is it going to muddy the waters?

Ms. Kirkby: I see that as slightly beyond the committee’s mandate.

The Joint Chair (Mr. Albrecht): It’s beyond our mandate, so we could back off on that.

Mr. Scarpaleggia: To Ms. Kirkby’s point, if the law says 180 days and they can’t seem to do it, should we be asking them if they think the 180 days should be a longer period?

The Joint Chair (Mr. Albrecht): I think that would be part of their initial process. To focus on that aspect of the legal part, maybe we’ll leave the other part out. At least they have a plan now, for 2023, which they didn’t have before.

Is there general agreement on that?

Let’s move forward with that. Thank you for your co-operation and your patience.

We’ll deal with Item No. 4, and then I’m going to turn it over to Senator Day.

SOR/2002-352 — REGULATIONS AMENDING THE CANADIAN AVIATION REGULATIONS (PARTS I, VI AND VIII)

(For text of documents, see Appendix D, p. 44D:1)

Ms. Kirkby: These are Regulations Amending the Canadian Aviation Regulations (Parts I, VI and VIII). One issue was raised in 2009 concerning whether a particular provision of the Canadian Aviation Regulations was authorized. Specifically, that provision requires the holder of an air traffic services operations certificate to submit certain information to the minister on request.

The Aeronautics Act authorizes the Governor-in-Council to make regulations respecting the keeping and preservation of records, but it does not explicitly authorize the making of regulations requiring the submission of information to the minister.

The joint committee has always been of the view that, as a general principle, requirements to submit documents require express statutory authority. But it agreed in 2009, in this particular case, that the requirement could be seen as valid as an extension of the powers that the act confers on the minister to enter and inspect premises, and the duty the act confers on regulated individuals to provide the minister with relevant information during the inspection.

The outstanding issue is not whether the regulatory provision is authorized but whether the act should be amended to make this authority explicit.

It seemed at first that Transport Canada was open to the idea of amending the act, but only in the context of a broader review. No indication was given when that review would occur.

The joint chairs wrote to the minister in 2011 to convey the wish that the act be amended within a reasonable period of time, but still no timeline was forthcoming.

Correspondence continued and in 2015 the joint chairs wrote to the minister again suggesting that if the broader review of the act was still some years off, perhaps consideration could be given to seeking the inclusion of this amendment in a set of proposals under the Miscellaneous Statute Law Amendment Program.

In 2016, the Minister of Transport responded that the department does not consider this amendment necessary but that it would be taken into consideration should the act be opened for review.

The joint committee considered this reply at its meeting on September 29, 2016, and decided to keep the file open and check with the department in a year to see if any progress had been made.

The latest reply from the department is included in today’s materials. The department does not consider an amendment necessary and would like the committee to consider the matter resolved.

This file is being presented under the heading “Reconsideration” today because there are recent examples of the joint committee deciding that it was not worth pursuing certain statutory amendments in cases where there was no concern whether the regulations were authorized.

Since that is the case in this instance, members may wish to conclude there is nothing further to be gained by keeping this file open.

The counterargument, however, is that it was already agreed in 2009 that there was no concern whether the regulations were authorized, but members nonetheless wished the file to be pursued, including letters to ministers on two separate occasions.

This being the case, it’s up to members how they wish to proceed when the department has specifically asked the committee to consider this file resolved.

Mr. Sidhu: The minister has indicated that there’s no need for amendment — there’s no appetite from their side. I think we should conclude this file. Why leave it open?

[Translation]

Mr. El-Khoury: I share my colleague’s opinion. Since the amendments proposed by the committee have no impact on the validity of the regulations, I think it would be better to think about closing this file.

[English]

The Joint Chair (Mr. Albrecht): I see general agreement. Let’s close the file and move on.

The Joint Chair (Senator Day): That’s a good place to start, closing that last file.

The Joint Chair (Mr. Albrecht): We’re about halfway through our agenda.

SOR/2015-164 — POLICY COMMITTEES, WORK PLACE COMMITTEES AND HEALTH AND SAFETY REPRESENTATIVES REGULATIONS

(For text of documents, see Appendix E, p. 44E:1.)

SOR/2015-143 — REGULATIONS AMENDING THE ON BOARD TRAINS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

(For text of documents, see Appendix F, p. 44F:1.)

SOR/2016-141 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CANADA LABOUR CODE

(For text of documents, see Appendix G, p. 44G:1.)

SOR/2010-120 — MARITIME OCCUPATIONAL HEALTH AND SAFETY REGULATIONS

(For text of documents, see Appendix H, p. 44H:1.)

SOR/2011-87 — AVIATION OCCUPATIONAL HEALTH AND SAFETY REGULATIONS

(For text of documents, see Appendix I, p. 44I:1.)

SOR/2000-328 — REGULATIONS AMENDING THE CANADA OCCUPATIONAL SAFETY AND HEALTH REGULATIONS

(For text of documents, see Appendix K, p. 44K:1.)

SOR/2014-141 — REGULATIONS AMENDING THE OIL AND GAS OCCUPATIONAL SAFETY AND HEALTH REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix L, p. 44L:1.)

The Joint Chair (Senator Day): We’re under “Reply Unsatisfactory.” There was a reply from the minister on this particular matter, but not one to our liking.

Ms. Becklumb: Seven files on today’s agenda are all interrelated, Items No. 5 to 9, 11 and 12. They all relate to occupational health and safety, OHS, regulations made under the Canada Labour Code, falling under the responsibility of the Labour Program at Employment and Social Development Canada, which I’ll refer to as “the department.”

The department is preparing several regulatory packages that will address numerous points across a number of these seven files. Therefore, correspondence between the joint committee and the department usually relates to more than one file, as you may have noticed in your materials.

For these reasons, I propose to present seven files all at once, relying heavily on the committee having reviewed the notes in advance of the meeting, and proceeding as suggested in the notes or as the committee may otherwise direct.

So this would be one global presentation of all of the points together raised on these seven files that would handle the following items on your agenda: 5 to 9, 11 and 12.

The Joint Chair (Senator Day): Yes.

Ms. Becklumb: All together, these items raise 260 points across seven instruments. Eighteen points have been resolved either through amendments, repeal or the committee having decided at an earlier meeting that explanations are satisfactory.

An additional 128 and a half points are to be addressed through amendments, either made this year or next year. More specifically, 119 points in whole and one point in part are to be addressed in a MARs package anticipated this fall.

Two points are to be addressed by a low-impact regulatory package to be published in Part II of the Canada Gazette next fall.

One point is to be addressed after similar updates are made to the Canada Occupational Health and Safety Regulations by that low-impact regulatory package, expected next fall.

Six points are to be addressed by a low-impact regulatory package to be published in Part II of the Canada Gazette this fall. The department could be asked whether it really does have two low-impact regulatory packages or if the one due this fall has been delayed and it’s one and the same with the package coming out next fall.

Then, 91 and a half points are to be addressed following reviews of various regulations. There are to be three regulatory reviews. First, the Maritime Occupational Health and Safety Regulations are being reviewed, following which 16 points are to be addressed. The department could be asked to provide a timeline for the review and related amendments. It is presumed that an additional 45 points will be addressed during the review of those Maritime OHS Regulations. A firm commitment from the department could be sought.

Nine points raised under the Maritime OHS Regulations have yet to receive a substantive response, so this should be pursued with the department.

The Aviation Occupational Health and Safety Regulations are also being reviewed, following which seven points in whole and one point in part are to be addressed. The department could be asked to provide a timeline for these amendments.

Finally, the Oil and Gas Occupational Safety and Health Regulations are also being reviewed, following which 14 points are to be addressed. The department anticipates the proposed amendments to be prepublished in the fall of 2019. Counsel could follow up on that time frame.

If you’re counting, that leaves 22 points for which explanations have been provided. Thirteen points in whole and one point in part may be resolved if the joint committee finds the explanations that have been provided by the department are satisfactory. Those explanations are set out in your notes.

Finally, eight points in whole and one point in part could be pursued further if the joint committee finds the explanations provided by the department, which are also set out in your notes, to require further clarification. These points include two provisions that appear to be unauthorized; one definition for which two different versions were enacted, and which therefore needs to be re-enacted with a single version; one provision that could benefit from some more accurate wording; three provisions that are lacking coherency and could potentially benefit from some clarification; and one provision that appears to be missing a requirement about the use of hearing protectors for certain employees.

The Joint Chair (Senator Day): Well done. It’s very tempting to go from 5 to 9 and then 11 and 12. Quite a few of those are just asking for timelines. Your recommendations along those points, I would assume, are acceptable.

There are a couple you wanted to follow up on, but the last eight points would need more substantive explanation as to our concern.

Mr. Badawey: I’ll attempt to put a recommendation forward. Bear with me.

From the ones you articulated, I’ll start off with the two that were going to be in Part II of the Canada Gazette next fall, if we can confirm that. The second is the following one next fall, if we can confirm that. The six that are also going to be in Part II of the Canada Gazette this fall, if we could confirm that and a timeline.

You said that the 91 and a half that were going to follow reviews, number one was the Maritime Occupational Health and Safety Regulations with the 16 points that were addressed, then the 45 points addressed and the 9 points that need to be pursued — if we could get a timeline and commitment on that.

After that, there was the Aviation Occupational Health and Safety Regulations, where seven points in whole and one point in part are to be addressed — if we can get a timeline on that.

You mentioned the fall of 2019 for the Regulations Amending the Oil and Gas Occupational Safety and Health Regulations and that 14 are to be addressed. Once again, get a timeline on that.

Following which you mentioned the 22, 13 and one that are currently being reviewed — again, if we can get an update on that.

The eight plus one in part they are pursuing — further clarification, if we can get that.

The last you mentioned — the two unauthorized, the one definition to enact, the one accurate wording, three clarifications, and one missing requirement — if we can get an update on that.

Ms. Becklumb: Okay.

The Joint Chair (Senator Day): That’s very helpful.

Mr. Badawey, you said gazetted, but it may be that some of these lesser important items — I’ve forgotten the terminology they use.

You indicated, counsel, that the department had said the fall of this year and then fall of next year. It may be that there isn’t going to be any fall this year and they will all go to the fall of next year. We should get a clarification on that as well, just to find out what’s going on.

Mr. Badawey: For the ones that are current. Thank you, senator.

The Joint Chair (Senator Day): Are we in agreement that those courses of action will be taken? That will be a rather extensive letter, but it will bring it all together for us. Thank you very much for doing that.

We’ve now dealt with Items 5 to 9 and 11 and 12, so we’ll deal with Item No. 10 under the heading “Reply Satisfactory.”

SI/2017-74 — APPOINTMENT OR DEPLOYMENT OF ALTERNATES EXCLUSION APPROVAL ORDER

SI/2017-75 — STATISTICS CANADA CENSUS AND SURVEY RELATED TERM EMPLOYMENT EXCLUSION APPROVAL ORDER

(For text of documents, see Appendix J, p. 44J:1.)

Ms. Kirkby: I wanted to bring this item back specifically because the committee had asked for a list to be provided to members. Instead of providing it to members, they published it on the Internet. So it’s a win for transparency that I felt merited bringing it back to committee. That file can be closed.

The Joint Chair (Senator Day): Shall we close out that file? That’s good news. Thank you. There’s consensus on that.

Items 11 and 12 are dealt with, so we are now on Item No. 13 under “Action Promised.”

SOR/2014-34 — REGULATIONS AMENDING THE RADIOCOMMUNICATION REGULATIONS

(For text of documents, see Appendix M, p. 44M:1.)

Ms. Kirkby: The amendments introduced unnecessary discretion to subsection 52(1) of the Radiocommunications Regulations by replacing the word “shall” with the word “may.” For the first years of the life of this file, the Department of Innovation, Science and Economic Development did not seem to understand the nature of the committee’s objection. The joint committee decided in 2017 that it may help clarify matters if counsel met with departmental officials rather than continuing to attempt to explain through correspondence. That meeting appears to have been fruitful because the department now advises that it is consulting with the Department of Justice on possible amendments that would address the committee’s concern.

Since the note in the materials was prepared, the department has advised the secretariat that the plan is to commence the relevant public notice process in early 2019. However, the department’s forward regulatory plan for 2018-20 indicates this is considered a low-impact regulatory amendment as a result of which public consultation will not be required.

Given this somewhat contradictory information, a letter could be sent to the department to seek an official update on the progress of the promised amendment.

The Joint Chair (Senator Day): Hear, hear. Thank them for their cooperation up until now.

There is another message here that sometimes a meeting with you can solve the exchange of letters over several years.

Are we in agreement that the mentioned action should be taken? Thank you.

[Translation]

SOR/2018-100 — REGULATIONS AMENDING THE METAL MINING EFFLUENT REGULATIONS

(For text of documents, see Appendix N, p, 44N:1.)

Ms. Kirkby: A single issue was raised in this file concerning a discrepancy between the French and English versions of Item No. 41 in Appendix 2 of the regulations. More specifically, the English version identifies a portion of the unnamed water course extending downstream from a point, but the French version identifies a portion of the unnamed water course extending upstream.

In July, Environment Canada indicated that this error would be corrected and incorporated into the next amendments to the regulations, which they planned to publish in the fall. As it happens, I believe that the correction has already been made in regulations published last week.

Counsel will thus verify whether this file can be closed, barely six months after the initial letter was sent.

[English]

The Joint Chair (Senator Day): Excellent.

Mr. Badawey, that was your motion. I think there’s consensus on that. We always like those.

We will now move to Item No. 15, under the heading “Action Taken.”

SOR/2018-113 — REGULATIONS AMENDING THE WILDLIFE AREA REGULATIONS (MISCELLANEOUS PROGRAM)

(For text of documents, see Appendix O, p. 44O:1.)

Ms. Kirkby: This instrument addresses the issues raised in 2005 in relation to the Wildlife Area Regulations. Specifically, the regulations no longer purport to prescribe a fee of “free” for children, and there is no longer ambiguity about how the regulations apply to children who are accompanied by an adult other than a parent.

As a result, the earlier file has been closed, and this file can be closed as well.

The Joint Chair (Senator Day): Are we all in agreement with that? Consensus here.

SI/2016-61 — M-I DRILLING FLUIDS CANADA, INC. REMISSION ORDER

SI/2016-65 — RITA S. SWEET REMISSION ORDER

SI/2016-66 — MICHELINE RACINE REMISSION ORDER

SI/2017-6 — ORDER DESIGNATING THE HONOURABLE BARDISH CHAGGER AS THE MINISTER FOR THE PURPOSES OF THE ACT

SI/2017-7 — ORDER DESIGNATING THE HONOURABLE BARDISH CHAGGER AS THE MINISTER FOR THE PURPOSES OF THE ACT

SI/2017-8 — ORDER DESIGNATING THE HONOURABLE KIRSTY DUNCAN AS THE MINISTER FOR THE PURPOSES OF THE NATURAL SCIENCES AND ENGINEERING RESEARCH COUNCIL ACT AND DESIGNATING THE MINISTER OF SCIENCE AS THE APPROPRIATE MINISTER FOR THE PURPOSES OF THE FINANCIAL ADMINISTRATION ACT

SI/2017-9 — ORDER DESIGNATING THE HONOURABLE KIRSTY DUNCAN AS THE MINISTER FOR THE PURPOSES OF THE SOCIAL SCIENCES AND HUMANITIES RESEARCH COUNCIL ACT AND DESIGNATING THE MINISTER OF SCIENCE AS THE APPROPRIATE MINISTER FOR THE PURPOSES OF THE FINANCIAL ADMINISTRATION ACT

SI/2017-10 — TRANSFER OF DUTIES ORDER

SI/2017-11 — ORDER DESIGNATING THE HONOURABLE JANE PHILPOTT AS THE MINISTER FOR THE PURPOSES OF THE ACT IN RESPECT OF PHYSICAL ACTIVITY AND DESIGNATING THE HONOURABLE CARLA QUALTROUGH AS THE MINISTER FOR THE PURPOSES OF THE ACT IN RESPECT OF SPORT

SI/2017-12 — ORDER DESIGNATING THE HONOURABLE CARLA QUALTROUGH AS THE MINISTER FOR THE PURPOSES OF THE ACT

SI/2017-16 — ORDER FIXING MARCH 12, 2017 AS THE DAY ON WHICH DIVISION 1 OF PART 4 OF THE ACT COMES INTO FORCE

SI/2017-67 — ORDER FIXING NOVEMBER 27, 2017 AS THE DAY ON WHICH CERTAIN SECTIONS OF THE ACT COME INTO FORCE

SI/2017-68 — ORDER FIXING DECEMBER 3, 2017 AS THE DAY ON WHICH DIVISION 11 OF PART 4 OF THE ACT COMES INTO FORCE

SI/2017-69 — ORDER FIXING OCTOBER 31, 2017 AS THE DAY ON WHICH SUBSECTION 3(2) OF THE ACT COMES INTO FORCE

SI/2017-70 — ORDER FIXING NOVEMBER 30, 2017 AS THE DAY ON WHICH SECTION 14 OF THE ACT COMES INTO FORCE

SI/2017-72 — ORDER ACKNOWLEDGING RECEIPT OF THE ASSESSMENTS DONE PURSUANT TO SUBSECTION 23(1) OF THE ACT

SI/2018-1 — ORDER FIXING DECEMBER 31, 2017 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THE ACT COME INTO FORCE

SI/2018-12 — ORDER TERMINATING THE ASSIGNMENT OF THE HONOURABLE KENT HEHR AND ASSIGNING THE HONOURABLE KIRSTY DUNCAN TO ASSIST THE MINISTER OF CANADIAN HERITAGE AND THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT

SI/2018-13 — ORDER DESIGNATING THE HONOURABLE KIRSTY DUNCAN TO BE « THE MINISTER » FOR THE PURPOSES OF THE ACT

SI/2018-14 — ORDER DESIGNATING THE HONOURABLE KIRSTY DUNCAN AS THE MINISTER FOR THE PURPOSES OF THE ACT IN RESPECT OF SPORT

SI/2018-15 — ORDER FIXING MARCH 12, 2018 AS THE DAY ON WHICH SECTIONS 442 TO 449 OF THAT ACT COME INTO FORCE

SI/2018-16 — ORDER DESIGNATING THE MINISTER FOR INTERNATIONAL TRADE, A MEMBER OF QUEEN’S PRIVY COUNCIL FOR CANADA, AS THE MINISTER RESPONSIBLE FOR THE INVEST IN CANADA ACT

SI/2018-20 — APPLICATION FOR CITIZENSHIP – MINORS REMISSION ORDER

SI/2018-26 — ORDER FIXING THE DAY ON WHICH THIS ORDER IS MADE AS THE DAY ON WHICH DIVISION 17 OF PART 4 OF THE ACT COMES INTO FORCE

SI/2018-27 — NORTHERN PIPELINE AGENCY COST RECOVERY CHARGE REMISSION ORDER, 2017

The Joint Chair (Senator Day): For “Statutory Instruments Without Comment,” you should know counsel has looked through those and found that there’s no need to bring them to our attention. It’s important for us to know they’re working away on other files we may not even see.

Ms. Kirkby: We have copies with us if anyone wishes to consult them.

The Joint Chair (Senator Day): We thank you very much for that.

The next meeting is December 13.

(The committee adjourned.)