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SPECIES AT RISK LAW
FEBRUARY 26, 2013
Species Extinction
• Species extinctions occurring at
1000 times the natural rate
• Habitat loss is the primary cause
(80% of extinctions)
• Why should we care?
SARA Saga
• Canada signed Biodiversity
Convention in Rio (1992) which
provides: Each nation “shall, as far as
possible and as appropriate: develop...
necessary legislation and/or other
regulatory provisions for the protection
of threatened species and populations”
Art.8(k)
SARA Saga
• Endangered Species Coalition
campaign by ENGOs, scientists
• Multistakeholder Task Force
agrees on legislation in1996
• Three House of Commons bills
(1996 – 2001)
• Species at Risk Act (SARA)
enacted in 2002
Species at Risk Act
Purposes s.6
• prevent wildlife species from being
extirpated or becoming extinct
• provide for the recovery of extirpated,
endangered and threatened species
• manage species of special concern to
prevent them from becoming
endangered or threatened
Species Status Definitions
• Extinct: a species formerly indigenous
to Canada that no longer exists
anywhere
• Extirpated: a species no longer known
to exist in the wild in Canada but
existing elsewhere
• Endangered: a species threatened with
imminent extirpation throughout all or
significant portions of its Canadian
range
Species Status Definitions
• Threatened: a species likely to become
endangered if the factors affecting its
vulnerability are not reversed
• Special Concern: a species that is
particularly at risk because of low or
declining numbers, because it occurs at
fringe of its range, or for some other
reason
SARA Prohibitions
• Killing, harming , harassing, taking
endangered or threatened species s.32
• Damaging, destroying residence of
endangered or threatened species s.33
• Ss. 32, 33 apply on non-federal lands
only if Cabinet order (s. 34)
recommended by Minister if “of the
opinion” that province not “effectively
protecting” the species or residences
SARA Prohibitions
• Destroying critical habitat (CH) of
endangered or threatened species if
– CH is on federal land
– Listed species is aquatic or migratory bird
species s.58.(1)
– Minister makes order identifying CH or
– CH is on provincial land and Cabinet
makes order based on Minister’s
recommendations that no other federal law
protects CH, province consulted s. 61
SARA Process
• Listing species by COSEWIC s.15
• Listing (legal) by Cabinet of species at
risk (or not, with reasons) s. 27
• Recovery Strategy prepared by
competent minister identifying critical
habitat “to extent possible” ss. 37– 42
• Prohibition critical habitat destruction or
• Safety Net application (discretionary) of
safety net if no provincial “effective
protection” ss. 60, 61
SARA Process
• Action Plan with measures to protect
species and habitat
• Stewardship Agreement or Permit
(s. 73) subject to conditions
– All reasonable alternatives have been
considered and best solution adopted
– All feasible measures to be taken
– Activity won’t jeopardize survival/recovery
Listing Species at Risk S. 15
• Committee on the Status of Wildlife in
Canada (COSEWIC) : scientists,
traditional aboriginal knowledge experts
• Assess status of wildlife species,
identify threats, classify status (e.g.,
threatened)
• Assess based on “best available
information on biological status” such as
scientific, community, aboriginal
traditional knowledge
Listing Species at Risk S.27
• Cabinet may take course of action to
add (or not) species to List, or refer
back to COSEWIC s.27.(1.1)
• Where course of action not to add
species to List, reasons in public
registry s. 27.(1.2)
• If course of action not taken within 9
months, Minister required to amend List
in accordance with COSEWIC
assessment s.27.(3)
“Science-based” Listing
Tug of War
• Initial House of Commons bills: Cabinet
has discretion to list (or not)
• House Environment Committee:
Cabinet has no discretion; list species
exclusively based on science advice
• SARA: “negative option” listing
Listing Process has worked
• Over 85% of species recommended by
COSEWIC listed by Cabinet
• Accountability provisions working
• Delays due to extension of 9 month time
frame (often for aboriginal consultation)
• Key predictors of Cabinet non-listing:
– DFO species (e.g., northern cod)
– Nunavut species (e.g., northern beluga)
– Commercially harvested
species (e.g., bison)
Recovery Strategy
• Must be prepared by competent
minister within 1 year of listing
(endangered species and 2 years of
listing (threatened species) s. 42.(1)
• Determine population and distribution
objectives, then develop recovery
measures in action plans
• Identify critical habitat “to the extent
possible based on the best available
information” s. 41.(1)(c)
Recovery Strategy
• Establish measures to protect CH
• Collaborate with partners/stakeholders
• Single species, multi-species or
ecosystem-based
• Recovery strategies published in Public
Registry
Recovery Strategies Behind
•
•
•
•
•
363 recovery strategies due as of 2012
170 completed, 25+ in draft
26 completed on time
Reasons: initial backlog, resources
Most species not getting critical habitat
identified: 25 full, 69 partial, 101 none
• CH identification more likely if in
protected areas, mining-related
provincially listed; less likely if municipal
land, urbanization
Action Plans
• Competent minister to include in public
registry, not necessarily to prepare s.50
• Collaboration with aboriginal people,
landowners in development s.48
• Must include “an evaluation of the
socio-economic costs of the action plan
and the benefits to be derived from its
implementation” s.49.(e)
• Time frame in recovery strategy not
SARA
Safety Net
• Designed to encourage provinces to
protect species at risk
• Minister must recommend to Cabinet
order enforcing prohibition if of opinion
that provincial laws not effectively
protecting species s.34.(3)
• Minister must recommend order if of
opinion that provincial laws not
effectively protecting critical habitat
s. 61.(4)(b)
Safety Net
“Effective Protection” Indicators
• Is species listed under provincial/
territorial law that provides specific
protection measures? (direct harm,
residence, critical habitat) s. 34.(3)
• Does species have provincial recovery
strategy? s. 61.(4)(b)
Federal-Provincial
Species at Risk Concordance
Of 298 SARA species listed by Nov. 2010
• 36% not listed under provincial law
• 26% have provincial recovery strategies
• 76% of species with federal recovery
strategy have no provincial counterpart
Safety Net
• Cabinet not required to issue s.34.(3) or
s.61.(4)(b) order
• Safety net not been invoked as yet
• Most provinces paying more attention to
species at risk since SARA (e.g.,
Ontario Endangered Species Act)
Emergency Measures
• If Minister of opinion there is an
“imminent threat to survival of species”,
Minister must recommend to Cabinet
that species be listed s.29.(1)
• If Competent Minister of opinion that
“species faces imminent threats to its
survival or recovery”, Minister must
recommend order to provide for
protection of species s.80.
• Cabinet has discretion to list,
issue order (or not)
Compensation
• Minister may “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 s. 58,60, 61
or emergency s. 64.(1)
• No regulations issued
• Landowner compensation was leading
issue for Conservatives in opposition
• Why not compensate?
Nooksack Dace Decision
• Loss of habitat one of main threats
• Location of habitat was known (four
B.C. streams)
• S.41 is key: legal duty to identify critical
habitat in Recovery Strategy?
• Final Recovery Strategy failed to
include critical habitat identified in Draft
Strategy
• What was the standard of review used?
Nooksack Dace Decision
• Why did DFO issue policy removing
critical habitat identification for recovery
strategies, which seemed so
inconsistent with SARA?
• What does habitat and critical habitat
mean?
• Explain DFO’s argument that habitat
includes a geographic location or area
but not a description of special features
or attributes
Killer Whale Decision
• S.58 requires Minister to order
protection of critical habitat if it is not
legally protected by another federal law
• Southern resident population of killer
whales listed as endangered, recovery
strategy prepared with CH identified
• Minister issues protection statement,
not protection order, arguing that
Fisheries Act and regulations protected
geophysical attributes of CH
Killer Whale Decision
• Protection statement didn’t consider
acoustic degradation, contaminants,
diminished prey availability (identified as
important in recovery strategy)
• Minister states intent not to use his
discretion under s.35.(2) of Fisheries
Act to authorize destruction of habitat
• Court: Intent not to use discretion not
legally enforceable; such an intent does
not ensure legal protection under SARA
Ontario
Endangered Species Act
• How does ESA listing process differ
from that of SARA? Role of COSSARO
vs. COSEWIC? Authority of Minister,
Cabinet?
• What are the differences in process for
recovery strategies?
• How do ESA and SARA differ with
respect to critical habitat protection?
Summary
• SARA led to significant increase in
identification of species at risk, habitat
protection
• Nature Canada, Ecojustice (Sierra
Legal), Sierra Club advocacy critical
• Too many resources on legal fights,
policy development, paperwork?
• Not enough resources on the ground?
(Habitat Stewardship Program)