BILL C - 33



to the


prepared by:
R.A. (Bob) Fowler

Ontario Property and Environmental Rights Alliance


O.P.E.R.A. is a coalition of private members and the following provincial 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


"To protect, and entrench in law, the rights and responsibilities of private landowners against arbitrary decisions and restrictions of governments"


Organized in 1994, the Ontario Property and Environmental Rights Alliance (OPERA) is a coalition of provincial trade associations and citizen groups with a shared mandate to support legitimate ecological initiatives while preserving the rights and responsibilities of private landowners.

To that end, OPERA has actively participated in dialogue with Environment Canada and its agent, the Canadian Wildlife Service, concerning proposed Species at Risk (SARA) legislation. Our views and concerns in that regard have been recorded in correspondence with federal and provincial authorities, in detailed submissions to Environment Canada, in oral presentation at interim Accord conferences and in invited consultation on landowner compensation with an appointed representative of Environment Minister David Anderson.

OPERA and its member organizations are responsible to many constituents whose lives and property are invested in a rural, not urban, life style in which prudent environmental management is not only traditional but essential. Thus our coalition is sympathetic to the guiding principles embodied in SARA legislation and is committed to recommending public co-operation with every reasonable government directive that supports them.

Still, we have steadfastly maintained that much of the language and many of the conditions attached to otherwise commendable objectives tabled in the formative stages of Bill C-33 failed to adequately recognize the interests and concerns of primary stakeholders directly affected by the proposed statute - private owners or lessees of rural land. In our view, the proposed legislation now being presented to Canada's Parliament leaves those reservations intact and, indeed, seems to emphasize and expand them.

The following OPERA commentary first acknowledges and applauds those currently expressed SARA principles under which, in our opinion, all Canadians, not to mention species at risk, will clearly benefit. The second component of our presentation summarizes private landowner concerns raised by currently proposed SARA legislation and outlines recommendations for their equitable resolution.

On behalf of its founding organizations and their respective memberships, OPERA does not, on balance, support the proposed Species At Risk Act as written and, with respect, asks the Standing Committee on Environment and Sustainable Development to recommend whatever modifications may be necessary to address issues raised in this submission.

OPERA commends thrust and direction of the following SARA provisions:

(1) Right of independent third party civil action against landowners in alleged SARA violation has been removed from the current issue of Bill C-33.

(2) The legislation now presented recognizes that social and economic impacts as well as compensation for affected landowners must balance SARA ecological objectives.

(3) Under the current Bill C-33, new listings of species at risk proposed by the scientific community are subject in all cases to parliamentary review and ratification.

(4) As and when implemented, Recovery and Action Plan procedures outlined in the Bill generally appear to be acceptable, reasonable and achievable.

(5) The legislation now under review confirms that costs arising from protection of species at risk must be shared equally by all Canadians.

However, among these laudable prerequisites are found a larger number of philosophical and structural defects which, in our view, mitigate against acceptance and effectiveness of the current Bill C-33 from the standpoint of private landowners in Canada.

OPERA believes these SARA deficiencies are counter-productive

(1) Bill C-33 as now written does not adequately recognize primacy of provincial jurisdiction in management of natural resources including species at risk.


Identify in Bill C-33 that any Canadian province or territory and its relevant species at risk legislation supersedes or co-opts federal legislation.

(2) Terms such as "extraordinary impact", "critical habitat", "competent Minister", "to the extent possible" etc. lack clarity and are open to bureaucratic interpretation.


Remove all language in Bill C-33 that could be seen as vague, elastic, opaque, inconsistent or misleading.

(3) Criminal law powers the federal government awards to itself in this legislation extend to citizen actions that may be innocent, inadvertent or legal under regional statutes.


Apply criminal law powers only where alleged offenders are charged with "knowingly" or intentionally" violating SARA prohibitions.

(4) Landowner compensation offered in Bill C-33 as written is imprecisely described and does not cover capital losses arising from government devaluation of productive land.


Clearly define all types of economic and capital losses for which specific levels of landowner compensation are to be made available under this legislation.

(5) For rural landowners, enforcement measures outlined in this statute are harsh and intimidating and penalties relating thereto are excessive, inequitable and unjustified.


Re-draft Bill C-33 to provide enforcement that recognizes legitimate economic activity of rural landowners and, for wilful offenders, just penalties that don't violate citizen rights.

 (6) The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) as defined in Bill C-33 does not provide an equal voice for private owners of rural land.


Specify in legislation that COSEWIC shall include in equal number appointed delegates representing scientific, general public, aboriginal and rural landowner interests.

(7) The proposed legislation incorporates "strict liability" as the basis for prosecution of alleged offences, a principle that imposes presumption of guilt on the defendant.


Remove the "strict liability" requirement and replace it with an unequivocal statement that all defendants under SARA are presumed innocent until proven guilty.

(8) Strict liability requires due diligence by defendants to prove innocence, a process likely to generate costs far beyond their expectations or resources.


Specify that all costs of professional consultations, advice and testimony relevant to prosecution of or defence against government charges will be borne by the government.

(9) Species listing could immediately impact landowner activity but related Recovery and Action Plans from which fair compensation might derive could be delayed for years.


Provide in Bill C-33 for staged payment of compensation beginning at species listing followed by annual instalments and final payment with Recovery/Action Plan approval.

(10) The legislation as written encourages Canadians to anonymously report its alleged violation by any claimed offender, including but not limited to, private landowners.


Specify that affected landowners be immediately informed of the allegation as well as the name and address of the citizen reporting same.

(11) Without constitutional property rights in Canada, Bill C-33 offers rural landowners no guarantee their social and economic rights will be respected.


Include specific assurance that private landowners will be fairly compensated in the event of expropriation or designation of their property as "endangered habitat".

(12) Recovery/Action Plans may be dominated by so-called "stakeholder" organizations with their own agenda but no tenure, title or financial investment in affected lands.


Specify that Recovery/Action Plans under Bill C-33 must be negotiated directly with affected owners, on the properties involved and with adjacent landowners in attendance.


OPERA has had a long standing and anxious concern about the Convention for Biological Diversity, a binding international treaty our then-current Canadian government signed in 1992 at Rio de Janeiro without public consultation or parliamentary debate. Under that agreement Canada was obligated to introduce stringent endangered species legislation by the year 2000. Accordingly, we urge all members of the present Standing Committee on Environment and Sustainable Development to review the above-noted Convention and its associated Agenda 21.

Apart from implications of global rather than national governance, Bill C-33 raises many questions left unanswered in the legislation now written. Moreover, judging by its draconian enforcement and penalty standards, SARA implicitly encourages the command-and-control approach inherent in the 1973 United States Endangered Species Act. For more than 25 years that initiative, however well intentioned, has completely failed to protect endangered species while bringing heartbreak and financial ruin to countless individuals, business enterprises and whole communities across the country.

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