Intervenor: Vol 24. No 4 October - December 1999

On the Brink: Critique of New Law on Endangered Species

Within the next few weeks, federal Environmental Minister David Anderson will be introducing a new bill in Parliament to enact federal endangered species legislation.

However, it appears that Mr. Anderson's bill-dubbed the Species at Risk Act (SARA)-will fall woefully short of providing effective and enforceable protection of the 340 wildlife species known to be at risk in Canada.

SARA represents the federal government's second attempt to pass legislation intended to protect endangered species and their habitat. The first legislative attempt, known as Bill C-65, fizzled out in 1997 after the bill had been widely criticized for its limited application, ineffectual habitat provisions, and overpoliticized process for listing species at risk.

Given this track record, many Canadians reasonably expected that the federal government would draft an improved bill which avoids the fundamental flaws of Bill C-65. However, it seems that not only does SARA repeat the shortcomings of Bill C-65, but, in some respects, it also represents a significant step backward from Bill C-65.

These problems are readily apparent in an Environment Canada discussion paper released in December 1999. This paper, which outlines the proposed components of SARA, claims that "protecting species at risk is a top Government priority for the new millennium". If this is the case, then there is very little in SARA which will actually achieve this lofty commitment.

Under SARA, for example, the critically important "listing decision" (which officially designates which species are at risk) is still left to Cabinet discretion. If a species is not listed for political or economic reasons, then it receives no legislative protection under SARA. Experience under provincial endangered species legislation has amply demonstrated that discretionary listing processes allow species at risk to remain legally unlisted and unprotected by law. Thus, SARA needs to be amended to ensure that listing decisions are made by an independent scientific committee (such as the highly regarded Committee on the Status of Endangered Wildlife in Canada) on the basis of ecological-not political-considerations.

Equally alarming is SARA's proposal to apply mandatory habitat protection only to federal lands. This restriction has been proposed despite the federal government's clear jurisdiction over habitat outside of federal lands, such as habitat for fish, migratory birds, and "trans-boundary" species which range across interprovincial (and international) borders. Given that habitat loss is the primary threat to species at risk, SARA needs to be amended to confer mandatory protection of habitat for all species within federal jurisdiction.

The enforceability of SARA is also questionable. To its credit, Bill C-65 previously proposed a "citizen suit" provision which would have allowed Canadians to take private action in court where government officials were unwilling to enforce the law. Such a provision, which exists in other federal and provincial laws, has been expressly excluded from SARA in favour of a vague proposal to establish a non-judicial dispute resolution mechanism (such as mediation or third party review). Unless SARA is amended to include a citizen suit provision, Canadians will be deprived any legal recourse if federal officials fail or refuse to enforce the law.

The deficiencies in SARA are not limited to listing decisions, habitat protection, and enforcement. For example, concerns have also been raised about Mr. Anderson's proposal to pay landowners unspecified compensation (presumably from public funds) for complying with the law, which is virtually unprecedented in Canada except in expropriation cases. Similarly, SARA's proposed "habitat safety net" (i.e. for lands outside federal jurisdiction) is devoid of details as to how federal officials will determine whether provincial laws are sufficiently protective of habitat on private or provincial lands.

It is clear that federal endangered species legislation is long overdue in Canada. As drafted, however, SARA simply does not deliver comprehensive national protection of species at risk or their habitat. Accordingly, prior to the introduction of SARA in Parliament, Mr. Anderson would be well advised to substantially amend and improve the bill. Given the urgency of protecting species at risk, an inadequate law is just as objectionable as having no law at all.

Recent studies show biodiversity endangered

Research presented at the 16th International Botanical Congress (week of August 2, 1999) shows humanity's impact on the earth has increased extinction rates to levels rivalling the five mass extinctions of past geological history.

On September 15, 1999 the UN, in a lengthy report by the UN Environment Program ("GEO-2000"), warned that "many of the planet's species have already been lost or condemned to extinction because of the slow response times of both the environment and policymakers; it is too late to preserve all the biodiversity the planet had."

The October 1999 volume of "Conservation Biology" contains the first scientific estimate of North American freshwater fauna extinction rates. The authors are Anthony Ricciardi of Dalhousie U. in Halifax and Joseph Rasmussen of Montreal's McGill U. The disappearance rate for freshwater species is 3.7% every 10 years; a rate five times faster than land animals and three times faster than ocean mammals in North America. It's also 10,000 times greater than the expected natural rate of species extinction, based on fossil records. At least 123 North American freshwater species have already been lost-due mostly to habitat destruction. Endangered are 49% of freshwater mussel species, 23% of snails, 33% of crayfish, 26% of amphibians and 21% of fish species.

Rick Lindgren is a lawyer at CELA