FEDERAL BILL C-5 - SPECIES AT RISK ACT
A WRITTEN BRIEF
Electronically submitted November 14, 2002
To
THE SENATE COMMITTEE
ENERGY, ENVIRONMENT AND NATURAL RESOURCES
By
THE ONTARIO PROPERTY AND ENVIRONMENTAL RIGHTS ALLIANCE
Ontario Property and Environmental Rights Alliance (OPERA)
Post Office Box 483, Durham, Ontario, NOG 1RO
Telephone: (519) 369-2195 / Fax: (519) 369-2992
E-mail: opera@bmts.com / Web Page: www.bmts.com/~opera/
Member Organizations
Association of Rural Property Owners
Georgian Triangle Development Institute
Grey Association for Democracy and Growth
Morewood Esker Landowners Association
Ontario Ski Resorts Association
Voice of King Area Landowners
York Durham Farmers Assessment Association
The private and corporate members of the Ontario Property and Environmental Rights Alliance (OPERA) welcome and appreciate this opportunity to present the following Brief to the Senate Committee on Energy, Environment and Natural Resources in the matter of a proposed federal Species at Risk Act.
PREAMBLE:
Over the past 4 years OPERA has actively participated in the evolution of Species at Risk legislation now under Committee review. During that period our coalition, on behalf of its supporting organizations and their members, communicated with the Canadian Wildlife Service, attended various workshops and filed direct submissions with Environment Canada. In addition, we exchanged correspondence with, and forwarded a petition to, it’s Minister, the Honourable David Anderson and provided detailed Brief regarding landowner compensation to his consultant, Dr. Peter Pearce, at a special meeting convened to discuss that issue.
In all that time and effort, OPERA has recorded full support for the principle of endangered species protection. Indeed, many members of its founding associations live and work with plants and animals every day and are dedicated environmentalists by experience, practice and personal conviction. Nevertheless, our views on the Species at Risk legislation now before this Committee have consistently included serious concerns with respect to some elements of its mandate, implementation and enforcement.
We are not sure, for example, that criminal law powers of the federal government, while perhaps the best device to apply, expand or supersede provincial and territorial endangered species regulations already in place, is the most appropriate way to promote public support for this Bill. Nor are we persuaded that a tribunal empowered to identify and proscribe endangered species across Canada should exclude private landowner representation in favour of scientific and aboriginal expertise alone. Or that common law rights of private land ownership in Canada are any less sacred than those inherent in aboriginal treaties. And, we regret to note, introduction of Bill C-5 follows usual government practice in that the Act is submitted for parliamentary and public debate but its critical implementation and enforcement Regulations are deferred to an unspecified future date when public interest and attention will have long since faded away.
To these and other general reservations arising from C-5 our coalition has routinely added specific concerns about the number and long term effect of legal prerogatives this legislation awards to the federal government. It is our understanding your Committee is particularly interested in that aspect of the statute.
We will, in this Brief, accordingly refrain from further overview remarks and focus instead on named Sections and numerically identified Clauses in the Act that, in our view, deserve special Committee attention from a standpoint of legislative and civil law.
CONCERNS:
Section 64 (1) The Minister may (bold italics added), in accordance with the regulations, provide
fair and reasonable compensation to any person for losses suffered as a result of any
extraordinary impact of the application of (a) section 58, 60 or 61 or (b) an
emergency order in respect of habitat identified in the emergency order that is
necessary for the survival or recovery of a wildlife species.
Comment:
As OPERA explained to Dr. Peter Pearce, the consultant appointed by Environment Canada
to research the compensation issue, the Act itself as well as any pertinent Regulations issued sometime later should provide a specific formula for private landowner compensation. Without such provision many landowners will ultimately conclude the legislation is designed to bewilder them while their assets are being stolen. The parallel irony is that environmentalists and politicians will be astonished when frustrated landowners adopt, as many Americans have, the only rational response of “shoot, shovel and shut up” to the Species at Risk Act as now written. This legislation and its complete lack of specific compensation provisions can transform honest landowners into criminals, a potential already inherent in gun control measures under Federal criminal law powers.
We urge this Committee to prevail upon the Minister to:
Provide compensation for all losses resulting from any negative impacts on private land that arise from imposition of Bill C-5 as determined by independent appraisers.
Offer landowners whose property is reduced in value 15% or more by SARA designation the option of having such property expropriated under Federal expropriation legislation.
Keep compensation independent of stewardship programs. No landowner should be compelled to refuse stewardship participation in order to qualify for compensation.
Allow only provincial, territorial or federal governments to establish and deliver stewardship programs under SARA regulations.
Revise the Ecological Gifts Program so that only municipal, provincial, territorial or federal government qualify to receive bequests of land designated as Endangered Species Habitat.
NOTE:
For governments to encourage donation of land to Non-Government Organizations (NGO) is one method of wealth transfer most Canadians would totally reject. Why should self-appointed special interest groups own or control donated property, much of which is thereafter declared exempt of municipal property taxes, when private owners can be compelled by statute to contribute their property to the state at no charge. Such government-inspired transfer of assets from one group to another is clearly inappropriate.
These recommendations are consistent with 10 compensation principles OPERA previously submitted to Dr. Pearce and now repeated as follows:
The principle of fairness must take precedence to ensure all beneficiaries, including the public at large, share equitably in the social and economic cost of Bill C-5.
(b) Compensation must be generally available to anyone with an economic interest in land who
sustains damage to that interest as a result of a SARA designation. Limiting damage claims to
extreme or extraordinary situations, defined at ministerial discretion with the burden of proof
and its attendant heavy cost imposed on the claimant, means that many private landowners
would be economically disadvantaged and thus disinclined to co-operate with SARA programs.
(c) Property owners must be compensated for partial “takings” i.e. when allowable uses of private
land are significantly reduced but title is left undisturbed. Compensation must be graduated to
fit each situation, not based on an “all or nothing” process.
Federal expropriation principles should be utilized in relation to both outright expropriations
and partial “takings” so that existing legislation can be equitably applied to cover all types of
damages, determine level of compensation and resolve disagreements. This does not mean all
affected lands must be expropriated, only that established principles and procedures will be
applied as required whenever land uses are reduced by state intervention.
The owner of private lands expropriated to satisfy a SARA designation should be compensated on the basis of market value determined by independent appraisers as to highest and best use of affected land at time of taking without regard for claimed presence of endangered species.
Landowners should be notified of any partial or total taking of their property under SARA together with a proposed schedule of remuneration on which to base an appropriate response.
Farm and woodlot owners must be compensated for both crop loss and market value devaluation of their property arising from a SARA designation.
Incentive and stewardship programs are totally independent of, and should in no way influence, compensation negotiations or payments.
Landowners experiencing SARA-inspired market value reductions of 15% or more should be offered the option of having that property expropriated under existing federal legislation.
A clearly defined landowner compensation formula posted in Bill C-5 and confirmed in its Regulations will determine success or failure of government attempts to protect species at risk.
Section 85 (1): A competent minister may designate any person or person of a class of persons to
act as enforcement officers for the purposes of this Act.
Comment:
This mandate is altogether too broad and will allow, if not encourage, patronage appointments of individuals nominated by government agencies or special interest groups that have little regard for common law prerogatives of private landowners. SARA enforcement officers with ties, past or present, to the public sector, professional environmental groups or Non-Government Organizations are unlikely to eradicate bias, or the perception of bias, in administration of this legislation.
Section 90: An enforcement officer may, while carrying out powers, duties or functions under this
Act, enter on and pass through or over private property without being liable for trespass
or without the property owner having the right to object to that use of the property.
Comment:
This provision, in our view, violates not only natural justice but the whole concept of democracy and due process as well. SARA’s stated objectives are surely betrayed if citizens are barred by this statute from preventing or even protesting unilateral invasion of their property at the whim or impulse of appointed government agents.
Section 91(b): The owner or person in charge of a place entered by an enforcement officer under
Section 86 and every person found in the place must (b) provide the enforcement
officer with any information in relation to the administration of this Act, the
regulations or an emergency order that the enforcement officer may require.
Comment:
OPERA believes this Clause implies that self-incrimination is mandatory and, in any event, could unfairly expose guests and children to complicated queries from visiting enforcement officers.
Section 96 (4): A copy of the report sent to a person whose conduct was investigated must not
disclose the name or address of the applicant (any third party requesting government
investigation of an alleged SARA offender) or any other personal information
about him or her.
Comment:
Canadian democracy and jurisprudence is not well served by this denial of a suspect’s right to know in advance all the details, including the identity of his or her accuser, of an impending or ongoing SARA investigation.
Section 97 (1): Every person who contravenes (there follows several Sections and
Subsections by number) or any prescribed provision of a regulation or an emergency
order, or who fails to comply with an alternative measures agreement the person has
entered into under this Act is (a) guilty of an offence punishable on summary
conviction and is liable to (there follows 3 penalty classes ranging
from a $ 50,000.00 fine or one year imprisonment or both to a $300,000.00 fine or
is (b) guilty of an indictable offence and is liable to (there follows an additional
3 classes of penalties ranging from a $250,000.00 fine or 5 years imprisonment or
both to a $1,000,000.00 fine.
Comments:
The draconian penalties proposed for this legislation are in keeping with its excessive government powers of access, search and seizure combined with the pervasive ramifications of anonymous allegations and secret investigations but not, we submit, with any degree of fairness or balance.
Section 100: Due diligence is a defence in a prosecution for an offence.
Comments:
This provision assumes that a private landowner charged with a SARA violation is at liberty to thoroughly investigate that charge at his or her own expense, an option for which most landowners lack expertise and resources. Thus, since landowner due diligence in most cases would require professional assistance available only at substantial cost, its admission in a SARA prosecution is a concession that extends no real benefit or comfort to most defendants targeted for such prosecution.
Section 105: This section incites judicial imposition of penalties in addition to those already
proscribed in Section 97 including but not limited to (d) directing the person (on
conviction) to publish, in any manner that the court considers appropriate, the facts
relating to the commission of the offence and (i) directing the person (on conviction)
to pay, in the manner prescribed by the court, an amount to an educational institution
for scholarships for students enrolled in environmental studies.
Comments:
OPERA shares with all Canadians a sense of shock and foreboding that legislation purporting to represent the best interests of all endangered species, plant, animal and private landowner, includes a judicial license to parachute into the list of specific financial and imprisonment penalties the added sanction of public humiliation and economic ruin.
SUMMARY:
OPERA is on record as fully supportive of the commendable objectives of Bill C-5. That said, we seriously doubt the process by which Environment Canada proposes to structure, implement and enforce this legislation can achieve its stated purpose without unfairly inflicting huge costs, psychological, emotional and financial, on private owners of rural land.
Our member organizations and their constituents accordingly urge this Committee to examine very carefully each proposed SARA section and clause, particularly those listed above and/or highlighted in other public submissions. Meanwhile, we note the Minister and staff of Environment Canada constantly assure all Canadians that the provisions of this statute do not impinge on democratic rights and freedoms. And that, in any event, its administrators and enforcers can be relied upon to invoke the broad authority awarded to them under Bill C-5 in a spirit of patience and forbearance.
May we suggest, with respect, that appeals to “just trust us” don’t fit well with legislation in which private property can be transferred for public benefit to the state without compensation to its lawful owner and alleged violators of the Act can be secretly accused and investigated and, under “strict liability” provisions, considered guilty until proven innocent. In that context, Bill C-5 cries out for searching scrutiny and appropriate modification by this honourable Committee.
________________________________________________________________________
If you have any questions or comments, please 
Mr. R. A. Fowler, Secretary.
or write
O.P.E.R.A. c/o R.A. Fowler, Secretary P.O. Box 483, Durham, Ontario. N0G 1R0