[Recorded by Electronic Apparatus]

Thursday, May 27, 1999

• 0830

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

Mr. Gurmant Grewal (Joint Chairman) in the Chair.


The Joint Chairman (Mr. Gurmant Grewal (Surrey Central, Ref.)): Honourable colleagues, before we proceed to the agenda, I should like to mention two things. First, our next meeting will be on June 3. Second, at the last meeting, it was decided that the Deputy Minister of Revenue should be requested to appear before the committee on June 3. Given that we have received a response from the deputy minister, is it still the will of the committee that he should appear before the committee?

Mr. Lee: Mr. Chairman, perhaps you or the staff can refresh our collective memories as to the background of this issue so that we can make an informed decision.

Mr. François-R. Bernier (General Counsel to the Committee): With regard to that file, the committee requested a response to a letter of July 10, 1996, to which no reply or acknowledgement was forthcoming. The committee then decided to invite the deputy minister to appear, Mr. Wright.

The suggestion was made at the last meeting that perhaps it was not necessary to have Mr. Wright appear if a reply were submitted. Mr. Wappel, in particular, took exception to that and felt that the appearance should be requested in any event, if only to explain why a reply had not been given to the letter of July 1996.

What we are looking for is whether that is still the wish of the committee, given that a reply has in fact been received.

Mr. Lee: My suggestion is that we take this matter under advisement and revisit it later in the meeting, in the hope that we can have some input from Mr. Wappel.

The Joint Chairman (Mr. Grewal): Fair enough.

Mr. Malhi: Mr. Wappel may be travelling with the Subcommittee of Justice and Corrections.

The Joint Chairman (Mr. Grewal): Will he not be here today?

Mr. Malhi: He is a member of that committee, which is travelling. He is usually here.

SOR/82-171 — STUART TREMBLEUR LAKE BAND (TANIZUL TIMBER LTD.) TIMBER REGULATIONS (Before the Committee on June 29, 1982, June 14, 1984, August 15,1985, April 2, 1987, February 11, 1988, March 8, 1990, March 26, 1991, December 5, 1991, May 4, 1995 and October 10, 1996 Fifth Report of the Second Session of the Thirty-third Parliament (Report No. 39) Sixth Report of the Second Session of the Thirty- third Parliament (Report No. 40) C.R.C. c. 954 — Indian Estates Regulations (Before the Committee on Februrary 10, 1993, May 4, 1995, April 18, 1996 and October 10, 1996)

The Joint Chairman (Mr. Grewal): The first item on our agenda is SOR/82-171. This matter has appeared before the committee 10 times since 1982, and I would refer the issue to Mr. Bernier for comment.

Mr. Bernier: Members have before them the draft sixth report of the committee. That report deals with a number of matters that fall under the jurisdiction of the Department of Indian Affairs and Northern Development and that were outstanding at the conclusion of the last Parliament.

Regarding the timber regulations, the draft report points out that the legislation designed to provide authority for a number of provisions has not been adopted. That was Bill C-79, which died on the Order Paper on June 23, 1998. The minister responsible wrote that she was examining other options but would not reintroduce Bill C-79. Nothing has occurred since. The report would recommend that the regulations simply be amended to reflect current legal authority.

Items 2 and 3 of the draft report deal with the implementation of previous reports of this committee. Again, legislation is required in both cases. The purpose of including these items in the report is to remind the government of that need.

Item 4 of the report has to do with the legality of a regulatory provision that grants the Minister of Indian Affairs and Northern Development a discretion to deem certain persons to be widows for purposes of distribution of property of an Indian who dies intestate. The recommendation would be that section 14 be revoked or that the government introduce legislation to deal with the matter.

If the committee wishes to proceed with this draft report, I should indicate that a few minor corrections have been made.

Mr. Lee: I did not find them all.

Mr. Bernier: I would like to have the errors you have found as well, just in case we missed them.

Mr. Lee, what were your points?

Mr. Lee: Just those two typos.

Mr. Bernier: Which page?

Mr. Lee: On page 2 of the report, the third line of the fourth paragraph reads in the event a licence is cancelled of moneys.

Mr. Bernier: That should be corrected to read or moneys.

Mr. Lee: On page 6 of the report, the third line of the second paragraph reads The Government's failure to out forward legislation, and it should read put forward legislation.

Mr. Bernier: That one has not been picked up. We will correct that.

Mr. Lee: Mr. Chairman, this has been an excellent bundling exercise. I am sure the ministry will find it useful.

I reconsidered why we did not look more closely at disallowance in some of these. Of course, one of the reasons is that we may not have wanted to disrupt a regime which, while perhaps illegal, was calculated to produce fairness for those who would benefit from the legislation. I guess that was our main reason.

However, my lawyer's head tells me that because of the history and record on this issue, which reflects the inability of the department to correct matters that are ultra vires, this is exactly a case in which we should be using disallowance. Given that this is kind of a bundling exercise, I will pass at this point and not suggest that we do that. We may wish to disallow later.

The Joint Chairman (Mr. Grewal): I also believe that disallowance is a course that we may wish to follow later.

Mr. Bernier: I take it, Mr. Chairman, that this discussion is on the Indian estates regulation, section 14.

The Joint Chairman (Mr. Grewal): Yes.

Mr. Bernier: That is certainly an option. Depending on the government response and what transpires in terms of corrective action, the committee may want to consider that.

Mr. Lee: I would be prepared to move adoption of the report if it is ready to go. It is a good exercise and may even be didactic for the ministry involved.

I move that we adopt this draft report as our sixth report.

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

Some Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): The motion is carried.

The next item is a letter from Garry Brietkreuz, Member of Parliament, on the Firearms Act regulations. Counsel, please proceed.


Mr. Jacques Rousseau (Counsel): This item is about a letter written by the Member for Yorkton-Melville concerning the Regulatory Impact Analysis Statements accompanying the regulations adopted pursuant to the Firearms Act.

According to the member, these RIAS are not consistent with the principles set out by the federal government with respect to the regulatory review process. Even though the committee has on occasion asked responsible departments to explain RIAS, the latter have not been studied or systematically reviewed by the committee.

Responding to the member's letter, the joint chairmen pledged to submit this matter to the full committee for a decision as to whether additional information should be sought. I have no particular recommendations to make in this time. It should come as no surprise to anyone that this issue has generated quite a bit of controversy and I prefer to let the member's colleagues decide the appropriate course of action to take.

Senator Grimard: I do not wish to discuss the root of the problem here, but there is something that I do not quite understand. The member initially wrote to the committee on July 22, 1998. In his letter dated March 18, 1999, he notes the following:

[...] I did not even get an acknowledgment of my submission to your committee. Our committee replied on April 28, 1999, after receiving a second letter from the member. This means that nine months elapsed between the time the member first wrote to the committee and the time we acknowledged receipt of his letter. Our committee is always critical of other departments and agencies when we ask them to revise their regulations and it sometimes takes them six months, ten months, one year and sometimes even two to respond. We are often extremely critical of their response time. However, I believe we are the ones who are at fault this time. In my opinion, it would have been a simple matter to acknowledge the member's letter, as we finally did this time. I realize the member issued an ultimatum of sorts by requesting a response before October 1, 1998. The committee is under no obligation to respond to this kind of ultimatum, but an acknowledgment sent nine months after the initial request seems out of line. I do not know if counsel has an explanation for what happened in this case. However, I think we should stop being critical of other agencies. This committee is not even able to send an acknowledgment within a reasonable period of time. Nine months is really unacceptable, in my view.

Mr. Bernier: An acknowledgment of receipt implies just that. In this particular instance, I can assure you that the letter dated July 22, 1998 never made it to the committee secretariat. I have no idea where the letter ended up, but we never received it.

Senator Grimard: One thing is certain, it was not forwarded to my office either.

Mr. Bernier: The first letter the secretariat had any knowledge of was the one dated March 18, 1999. An acknowledgment of receipt was sent out on April 28, 1999.

Senator Grimard: I accept your explanation. I will take your word for it.


Mr. Lee: Mr. Chairman, at the time I would have been joint chair of the committee. Although the letter was addressed to the committee and its joint chairs in care of the Senate, I recall that this letter, or a copy of it, did turn up at my office over the summer. During that summer, for a period of a month or five weeks, my Ottawa office was closed. I do not know why the letter did not go to the committee secretariat, given the address on it, but I accept that our secretariat did not receive it. I do not know whether the other co-chair received it. However, the letter did not get to where it was intended to go. If it were delivered to my office, my office was not in a position to deal with it over those summer months. I do not know what happened in September and October. It is regrettable that the letter never arrived at its intended destination.

The Joint Chairman (Mr. Grewal): This is the second time since I have been on this committee that I have heard that a letter was lost. We can rectify what has happened. In future, when a letter is delivered to the co-chairs, we will direct our staffs to send it directly to counsel.

Perhaps letters should be circulated to committee members at the same time.

Mr. Bernier: That is the choice of the members.

The Joint Chairman (Mr. Grewal): We will send it to counsel and leave it to counsel to dispose of.

Since the letter is before us now, we will proceed.

Mr. Lee: Mr. Chairman, I should like to speak to the substance of it.

I have a sense of the member's vigilance in monitoring the implementation of the firearms legislation and his goal of ensuring that the process of implementation of the Firearms Act and the regulations comply with our regulatory requirements.

In his letter, the member suggests that the regulatory impact analysis statements fell short of the standard that he thought should be in place, or the standard that was required by government regulatory policy. However, regrettably, I am unable to find the particulars of the deficiency. He alleges that the RIAS documents were either deficient or incomplete. However, there is not a shortlist of particulars in this document that I have been able to find that I can hang my hat on.

To use a pun in the context, he has somewhat shot-gunned the problem. That is not helpful.

One of his other difficulties may be that, in looking at the whole statutory scheme, he regards it as regulatory. In other words, the purpose of the legislation was to regulate firearms more closely, therefore, he reviews the statute itself as regulatory.

It seems that he is disappointed that, perhaps, the implementation costs all of the legislation were not costed. That is not helpful either, because our objective here is to look only at the regulations.

I believe that he is suggesting that, when the statute was put in place, the estimate of what the whole regime would cost was not accurate enough. Then, as the various regulations under the statute were put in place, perhaps they did not even try to do any costing. However, they fell short as well in terms of government regulatory policy, where costs should be assessed as accurately as possible when a regulatory measure is put in place.

I find it difficult to respond to this letter regarding what the committee might wish to do.

The Joint Chairman (Mr. Grewal): Mr. Breitkreuz has mentioned two points in his letter of March 18: the cost-benefit analysis; and serious deficiencies in the regulatory analysis impact statement.

In his letter of July 22, which is attached, he has carefully listed the deficiencies in regulatory impact analysis statements.

In that regard, even if there is a doubt in our mind that he is referring to statutory or regulatory confusion, we must give him the benefit of the doubt. I believe we should invite the member to appear before the committee and let him clarify his position. The committee will then be in a better position to decide what we should do.


Senator Grimard: I would like to hear what Mr. Bernier has to say about this.

Mr. Bernier: About whether we should request an appearance by the member?

Senator Grimard: No, about Mr. Lee's views.

Mr. Bernier: On this subject, on page 6 of the document, the member lists a number of apparent inconsistencies or shortcomings in the RIAS. This is an initial list of more general shortcomings, and later, on page 7 of the English version and page 8 of the French version, he goes on to identify specific things that were omitted from these RIAS. As to whether the member is right or not, as my colleague said, I would prefer to leave it up to the members to decide how best to proceed.


Mr. Lee: I acknowledge that page 6 of the original English version includes specifics. However, there are some 48 separate alleged omissions. As I read them, it was my sense that he was listing them not with reference to the regulations but with reference to the entire statute. He is still entitled to list them with reference to the regulations.

This may be a conceptual issue that we may not have been able to address before — that is, when Parliament takes a step on a statute it follows the statutory implementation process. I am sure that cost-benefit analyses are done but they are not part of the regulatory regime.

After the statute is in place, decisions about cost benefit have already been made by Parliament in terms of the implementation of the whole statute.

If you look at some of the particulars, he seems to be second-guessing the statute as opposed to the regulation. However, both the statute and the regulations are intertwined.

Is he attempting to go back to reconsider the statute in the way he is addressing the RIAS for the regulations? My difficulty is trying to pinpoint something when he has almost 50 specific omissions. I suppose he could have gone on and listed another 50. That does not have the impact on the price of bananas.

Not to make light of it, but if there were a short list of two or three omissions, then we might want to look at it. However, the most critical omission or omissions are the ones on which we should focus.

How would the department respond to the allegation that there are some 48 separate omissions from the RIAS? I am sure that they would provide a 50-page reply.

I am inclined to invite the member to help us, to provide some focus regard the RIAS procedure. That will take us a long way. If we are to take his letter and look into it, we are looking at the SJC counterpart of the Somalia inquiry here because there are so many issues.

I have respect for the member's position. He would like us to look sincerely at whether the department handled the RIAS process in good faith and in a proper way. Perhaps we could write him back, thank him for putting so much effort into it, and ask him to focus on some specific element of the RIAS procedure. Then we can consider it.

The Joint Chairman (Mr. Grewal): Mr. Lee, we will write to thank the member and ask him to give the committee some focus. At the same time, if he is available, we will ask him to appear before the committee on June 3. That would at least give us something to start with, and then during the break we will work on it.

He wrote in July 1998, so there has been a delay on our part, even acknowledging his letter. If we invite him, at least it will give the committee the opportunity to hear his view, and then we will see in what direction the committee wants to go. We can discuss that issue after we hear from him. Would that be fair?

Mr. Lee: I will support that proposal. The member, of course, is a member of the house, so he is always welcome here.

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

Hearing none, we will invite him for a meeting on June 3.


The Joint Chairman (Mr. Grewal): Our next item is the Hamilton Harbour Commissioners' Land Use and Development By-Law


Mr. Rousseau: On April 15 last, the committee heard representations from representatives of the Hamilton Harbour Commission and from Department of Transport officials in connection with the by-law. The note accompanying the file points out that according to departmental officials, the promised amendments could finally be in place this fall. The committee has also received a copy of the Commission's most recent audited financial statements.

Lastly, committee members will recall that at that meeting, it came to light that commissioners were operating a sailing school and sailing three large boats in Georgian Bay. It was by no means clear that the Commission had the requisite authority to conduct this type of activity.

However, as the note points out, the expenditure of public money for unauthorized purposes is not a matter that falls with the committee's mandate. However, the committee does have several options if it wishes to pursue the matter. It could draft a report to Parliament, advising it that it felt it should bring this matter to its attention, even though it is does not fall with the committee's mandate. Or, it could also write to the Auditor General or to the Minister of Transport, or to both individuals.


Mr. Lee: Mr. Chairman, alternative number two appeals to me; that is, to write to the Minister of Transport and the Auditor General. Counsel has pointed out that one of the items that we have noted in this study would not be directly part of our normal mandate here. We should make the issue known to the Minister of Transport and to the Auditor General. We should also pose, in that correspondence, a question and ask for a reply. We should ask conceptually for initiatives involving unauthorized spending by an agency of this nature, including the new Canada Port Authorities, and tell them we want to know what mechanism under this statute would provide some sense of guidance to the agencies in this regard. For example, does the new statute provide for any restrictions on how these agencies would spend the money that comes into their possession? It is a general accountability question.

I think we should raise the old harbour commission paradigm and ask the minister to advise us for our reference, even though it is not part of our mandate, just in terms of general accountability, regulation-making and delegated legislation, whether the new statute has any provisions offering guidance restriction or whatever for the CPAs.

The Joint Chairman (Mr. Grewal): That seems fine to me. Mr. Bernier, do you have any comments?

Mr. Bernier: I have no comments.

The Joint Chairman (Mr. Grewal): Should we write to him and give him a deadline?


Senator Grimard: I think that would be the best solution because simply filing a report on the situation would not do much good, whereas Mr. Lee's suggestion seems fair and reasonable. I agree that we should write to the Auditor General as well as to the Minister of Transport to advise them of the situation and to request a reply and comments.


The Joint Chairman (Mr. Grewal): Should we ask for a reply within two months, so that when we are back, if we have to report to Parliament, we can proceed with that?

Mr. Lee: It is like kindergarten to put a deadline into a routine letter. I do not think we need to ask for a reply from the Auditor General, unless my colleagues feel differently.

Mr. Chairman, if you want to put in a deadline, go ahead. We do not normally do that.

The Joint Chairman (Mr. Grewal): I thought it might be helpful since it often takes so long to shuttle these letters between various departments and the committee.

Mr. Lee: We can tell him that the committee would want to conclude its interest in this matter by the month of October.

Mr. Bernier: Mr. Chairman, as I think Mr. Lee will recognize, we are slightly outside the boundaries of the mandate here and, as such, am not certain that we are in a position to demand replies by given dates.

The Joint Chairman (Mr. Grewal): Fair enough. Counsel will prepare the letter.

Out next topic is disallowance procedure.

Mr. Bernier: Mr. Chairman, when this matter was last before the committee, a request was made that the item be deferred in order for the vice-chairman to have an opportunity to undertake certain consultations with colleagues and get back to the committee. At the time, I was asked to bring the file back this month.

Mr. Lee: Mr. Chairman, I believe we have an opportunity to close the loop on this unfinished item of business.

I have not been able to conclude a firm commitment in any quarter that would provide a green light either to the committee or to others. However, I have been discussing it with various colleagues. I think it could be done, but I have a sense that it would have to be done as a grassroots private member's initiative. However, I do not detect a will on the part of the government to make any changes. There never has been.

There is now operating what is called the Special Committee of Council. It is a functional part of the cabinet-Privy Council operation. It is a subcommittee of the Privy Council that focuses on the regulatory side, and it is probably a good thing that that is there.

The way the cabinet deals with these things has been on and off and half-way there and half-way not there over the last few decades. It has had different ways of dealing with regulatory matters and enactment of regulations. At least there is a focus for this committee — that is, a place, an office, a room, a grouping of cabinet ministers to whom something can be addressed.

The question that comes to mind now is: Would it be worthwhile asking the Minister of Justice to appear and review this with us? We have an outstanding invitation that is a couple of years old now. We also have a new minister. I would be inclined to suggest that we invite the minister to attend here after we have presented the minister with this information and have spoken to our respective parties and critics within them on this subject.

A good, solid explanatory memo has been prepared and updated. Is it possible that we could actually send that memo to the Minister of Justice? If it is, then it would be appropriate to send the memo and, in a covering letter from the co-chairs — and I will include my signature if the co-chairs want it — explain that it has been the goal of the committee to complete what we regard as unfinished business and invite her to review the memorandum and appear before the committee to discuss it at the earliest mutually convenient date. That would take us into autumn. We would, in fact, be reviewing the regulation then.

In the meantime, I consider it one of my personal goals to try to complete this. If other members on the committee feel the same way, then their efforts within their respective caucus would be very helpful.

The Joint Chairman (Mr. Grewal): Mr. Lee, thank you for helping to keep the ball rolling on this. As you said, there does not seem to be a will from the government on this issue to make the issue of disallowance clear.

You also said that a private member's initiative could, perhaps, resolve this issue more quickly. I already have a private member's bill, which we discussed some time ago. However, there are two issues that are not properly addressed in it and I will ask for it to be modified. If the committee believes that it should be a private member's initiative, we can look into that. There are rumours that there will be a shuffle in the cabinet and we do not know if the present Minister of Justice will continue with the same portfolio. Our invitation was initially extended to the previous Minister of Justice. Perhaps we can extend the invitation to the present minister and hear from her when the house sits again in September. Should we wait until then or should we see if the minister can appear before that time?

Mr. Bernier: We do not have the time.

The Joint Chairman (Mr. Grewal): I think it would be a good idea to write to the minister to appear before the committee. At the same time, we can also address whether or not a private member's initiative should be in place. If we have support from all the committee members, we can look at that option at the same time rather than waiting for the minister to appear before the committee towards the end of the year.

Mr. Lee: That is fine. Mr. Chairman, I suggest that you go ahead and prepare that bill, in consultation with counsel here and whomever else you would normally consult. However, do not put it into the hopper until we get a sense of where the minister is at on it. The House of Commons will likely prorogue over the summer — most of us feel that it will — so there is no point rushing to get your bill in until the fall.

The Joint Chairman (Mr. Grewal): You are absolutely right. That is why I did not rush. I would invite all committee members to add their input. Before I introduce the bill in the House of Commons, I will circulate copies to all members, to ensure that members are comfortable with the content of it.

Mr. Lee: If I may be even more pointed, I would suggest that you not submit it until there is an appropriate bundle of consensus among the members here. You will be doing it generally on behalf of the members here. I suggest that you prepare it and wait for the appropriate moment. As a member, you are always free to do this, but I am suggesting that, it if it is to be a group effort, you obtain that consensus.

The Joint Chairman (Mr. Grewal): I agree with that. I will not rush it. Only after this group is comfortable will I proceed.

Mr. Malhi: I agree with writing the minister at this time. In the event of a cabinet shuffle, perhaps the chair and vice-chairs would be prepared to write a subsequent letter to the new cabinet minister, so that we do not lose more time again.

The Joint Chairman (Mr. Grewal): That is an excellent suggestion.

Mr. Bernier: Along the same lines, Mr. Chairman, could members try to give some thought in terms of procedure — that is, seeing what is available that would emphasize the non-partisan nature of the initiative, whether it is in terms of who promotes the bill, who actually submits it, or who seconds it. I do not know precisely what motions may be required, but it may be a good idea to make an effort to make it obvious — that is, assuming consensus here — that this is a non-partisan initiative and a parliamentary initiative in the full sense of the word.

The Joint Chairman (Mr. Grewal): Absolutely. That will be addressed in the modus operandi, but I do not have any objection if another member wished to introduce that bill. If it is a government member introducing it, I have no problem in seconding it. If I happen to introduce it, then I will expect members from other parties to second it or support it so that we can proceed.

Mr. Bernier: Can two people submit a bill?

The Joint Chairman (Mr. Grewal): No, only one can submit a bill. However, the seconder can be from another party. Whatever we do, we will pick a seconder from the other party so that it remains non-partisan. Is that acceptable, Mr. Lee?

Mr. Lee: Yes. That is a good suggestion.

The Joint Chairman (Mr. Grewal): I am not determined that I must introduce it, but without knowing about this letter of 1997, when I wanted to acquaint myself with the procedure I found that there was a problem. I then consulted with previous members of the committee and that is how the ball started to roll.

Now things are in good hands. The committee believes that something should be done. I am convinced that we should proceed in that manner.


(For text of documents, see appendix, p. )

Mr. Bernier: Mr. Chairman, the note to the committee sets out the comments I have about the two letters from the minister. There are really two issues here. The first is whether it is acceptable to the committee that amendments promised to the committee simply be delayed until such time as a policy review is completed. The second concern is the apparent about-face of the agency on the issue of the validity of section 74 of the regulations.

Mr. Lee: Mr. Chairman, counsel has quite properly identified what is probably a pretty serious turn of events. We usually hold fast to undertakings and commitments given by ministries and agencies to this committee. We must take a dim view to an about-face or a reneging on these positions.

It is possible that the apparent about-face in this and other files may have been inadvertent. It may have involved some miscommunication between the agency and the minister. It is difficult to tell until you get the people right in front of you, but it is clear that we have had the rug pulled out from under a previous position.

I do not know quite how to deal with this. One reaction is to have both the agency and the minister in here. Let us just get it sorted out once and for all.

I suppose we could write again, ask for clarification again, and indicate that, if there has been a change in mind, the committee would take a dim view and would take the matter up publicly in a meeting. Do other colleagues have comments?

The Joint Chairman (Mr. Grewal): The first option is a good option. The agency and the minister should be here so that we can sort it out once and for all. Let us put all the issues on the table and get the reaction right away.

Writing and then taking the issue to a public meeting would be the second option. In my view, we should invite agency representatives of the minister to our committee.

Counsel, do you have any better ideas?

Mr. Bernier: Not really, Mr. Chairman. There are two things here and they do not involve the same people. First, the agency, after ten years and without ever bothering to inform the committee, changed its position on the legality of the section.

The other issue is the minister's refusal to accede to what I thought was quite a reasonable request. This committee requested that his instruction not to process any further air regulations amendments should not apply to those amendments already promised to this committee. This the minister has refused. He maintains his previous instruction to the agency that no further amendments, including those promised to this committee, should proceed.

Those are the two issues. Both involve the Minister of Transport, the second only indirectly. The second one really involves the agency.

Mr. Lee: We should call the agency. It is the agency from whom we sought the position. It is the agency that appears to have changed its position. I do not think we can accept that. This is a 10-year-old file and we should be more firm. I propose that we call the agency on the first available date that is convenient to the committee.

In terms of the minister, although it may not have been done before, is there a way that the committee could report to the house or the Senate and, in a concurrence motion, have the house adopt a report that would either require or urge the minister to do precisely what the committee has recommended, which is the position contained in the first paragraph of the memorandum here? The minister should not apply this freeze to amendments previously promised to the SJC.

This may not have ever been done before, but if the committee has a position that it wishes us to adopt and the position is that the minister take a course of action or not take a course of action, is there anything to prevent us, if things are going out of control here, from putting into the house or the Senate a motion that would urge precisely that and then have the house adopt it? The minister would either act in accordance with the adopted resolution or he would act against it and take his chances.

That may be new ground, but if we feel strongly about it we may wish to consider something like that.

The Joint Chairman (Mr. Grewal): I believe that the matter is already out of control. In the last 10 years, there have been no developments. Both sides are refusing to honour the committee's requests.

Mr. Bernier: Mr. Chairman, if it would help, this particular issue of delaying amendments promised to the committee comes up in another one of these files. Perhaps we could suspend and look at what is involved in the other file, which might help to provide a direction to the committee as to the best way of dealing with this.

On this one then, we would keep the request for the agency to appear and explain its change of position on section 74.

Mr. Lee: Agreed.

The Joint Chairman (Mr. Grewal): If I may interject, if and when we ask representatives of the agency to appear, would it not be a good idea if the minister were also invited to attend at the same time? We can cross-reference and resolve the issue faster that way.

Mr. Bernier: As we look at the next file, that question may be answered in that reference.

Senator Grimard: I am sorry to inform you that I must leave, as I must attend another meeting, which began at 9 o'clock. Would that be acceptable? If this meeting only goes for another five or ten minutes, I can remain here until it ends.

Mr. Bernier: If we can go through these files, the letters to ministers, then we could defer the others.

The Joint Chairman (Mr. Grewal): Would that be okay?

Senator Grimard: Yes.


Mr. Bernier: Our comments are set out in the note again. The first issue is whether the joint committee has been misled as to the nature of the amendment registered as SOR/97-519 or whether it is the Minister of Transport has been misinformed by the agency. That amendment was represented to this committee as removing this business of ceilings or maximum rates or interswitchings and substituting, therefore, fixed rates. The legislation simply does not allow the fixing of maximum rates; it only allows the fixing of specific rates. That amendment was supposed to do that, or at least it was so represented to the committee.

Reading the minister's letter that was received in this case, it now appears that this may not have been the case at all. That is a letter from the minister to the chairman of the Canadian Transportation Agency which was copied to this committee. The minister refers to the longstanding agency practice of establishing maximum rates as if it were still the current practice.

As noted in the comment here, it either means the minister is not aware that the agency abandoned the practice in 1997 or the committee was deliberately misinformed as to the nature of the 1997 amendment. That is the first issue with which the committee must deal.

The second issue has to do with the apparent belief of the minister that it is acceptable for an illegal regulation to remain in place pending his completion of a policy review, which is the same policy review referred to in a previous file. I think this evidences a rather peculiar understanding of the rule of law.

The minister in his letter refers, Mr. Chairman, to an inconsistency between the existing regulation and the statutory authority for the regulation. I think it should be clear that an inconsistency between a regulation and the enabling statute means that that regulation is illegal, and that is what we call it — not an inconsistent regulation, but an illegal regulation.

To me, it is surprising to find a minister of the Crown supporting a course of action that would see an illegal regulation continue to be applied and remain in place pending the completion of some policy review. That is the second issue with which the committee must deal.

Mr. Lee: Clearly, there is a need to deal with the agency. I think my colleagues will agree with that. Add that onto the list when the agency is here. We still have not resolved whether we need the minister at that point in time.

Could we go to the third issue?

The Joint Chairman (Mr. Grewal): One quick question. Since the minister is not aware of this situation, or the minister has been misled, how do we deal with that issue? If we hear from the agency alone, that issue still remains in the dark.

Mr. Bernier: Perhaps Mr. Lee has a point. Let us deal with the last file, and then the committee can decide what it wants to do in relation to the minister.







Mr. Bernier: The committee was requesting from the Minister of Transport a reply to a letter from counsel of July 10, 1996. That letter was sent because the committee did not consider an earlier reply from the Canada Ports Corporation to be satisfactory. The minister does not provide the requested reply.

My view is that, in this file, the committee has encountered a deliberate and illegal setting aside of the statutory penalty provision, which was in the former statute, by various agents of the Crown for the sole purpose of avoiding their legal obligations under the Statutory Instruments Act. The agency responsible for setting up this course of action, the Canada Ports Corporation, after an initial and inadequate attempt at justifying its illegal regulation, then chose to obstruct the work of the standing joint committee by refusing to provide replies to that committee. This course of obstruction apparently meets with the approval of the responsible minister who, in turn, is refusing to provide the requested reasoned reply to the letter of July 10, 1996.

I would add that neither the Canada Ports Corporation nor the minister has been asked for an opinion on whether it would be useful for a reply to be made to the letter of July 10. They have simply been asked to provide that reply.

Mr. Lee: Mr. Chairman, here we have the Canada Ports Corporation. The other agency is the National Transportation Agency. We now have two agencies and a minister. I think we need to see the Canada Ports Corporation.

Mr. Bernier: They no longer exist — which is why we went to the minister to request that.

Mr. Lee: I suppose a case can be made, then, for having the minister come in to deal with this. No one else is in a position to deal with this but the minister. One could argue that the deputy minister has let things slide a little bit, but we have been corresponding with the minister and have not had an adequate reply on File No. 3.

Senator Grimard: I agree with what Mr. Lee has said. I have no personal opinion on this matter.

The Joint Chairman (Mr. Grewal): Where do we go from here?

Mr. Bernier: Mr. Lee was suggesting, by the third file, that he is coming around to the view that the minister should be asked to appear, along with agency representatives, on the first two files.

Mr. Lee: Will the minister have the benefit of seeing the memoranda that are circulated? They would be very helpful to whoever will be advising the minister.

Again, subject to the summer cabinet shuffle, if there is one, and making whatever adjustments might be necessary to take that into account, we have the Canada Transportation Agency and the Minister of Transport. Is counsel satisfied that the Canada Ports Corporation is wrapped up?

Mr. Bernier: We can verify that. As some witnesses indicated last time, some of the new port authorities are in place, but I think the Canada Ports Corporation will continue to have some kind of shadowy existence.

Mr. Lee: Let us ask the minister to bring along whoever is looking after the residue of Canada Ports.

The Joint Chairman (Mr. Grewal): Okay. We can defer the rest of the agenda to the next meeting.

Mr. Lee: I think we can wrap up these files fairly quickly.


Mr. Lee: Mr. Chairman, I have looked at this. While movement is slow and halting, I still see movement and progress, so I think counsel could continue to work on this and hustle it along.


(For text of documents, see appendix, p. )

Mr. Lee: I also see progress here, halting but slow.

Mr. Rousseau: As you said, Mr. Lee, there is progress on SOR/97-103. The letter we received in February stated that the consultations were not completed. Perhaps it is now time to write to the department to query whether this has now been completed.

Mr. Lee: The last correspondence was in February, and that is not too bad.


(For text of documents, see appendix, p. )

Mr. Lee: This item looks fine to me. There is movement. I think counsel can continue to monitor and pursue our goal in this regard.

The Joint Chairman (Mr. Grewal): Thank you very much.

Mr. Lee: How many instruments are there without comment?

Mr. Bernier: There are 67.

Mr. Lee: Thank you very much.

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

The committee adjourned.