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)