SPECIES AT RISK LAW FEBRUARY 26, 2013

1. SPECIES AT RISK LAW FEBRUARY 26, 2013

2. Species Extinction • Species extinctions occurring at 1000 times the natural rate • Habitat loss is the primary cause (80% of extinctions) • Why should we care?

3. SARA Saga • Canada signed Biodiversity Convention in Rio (1992) which provides: Each nation “shall, as far as possible and as appropriate: develop... necessary legislationand/or other regulatory provisions for the protection of threatened species and populations” Art.8(k)

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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)

14. “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

15. 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)

16. 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)

17. Recovery Strategy • Establish measures to protect CH • Collaborate with partners/stakeholders • Single species, multi-species or ecosystem-based • Recovery strategies published in Public Registry

18. 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

19. 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

20. 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)

21. 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)

22. 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

23. 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)

24. 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)

25. 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?

26. 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?

27. 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

28. 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

29. 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

30. 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?

31. 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)