Intervenor: vol. 26, no. 4 September - December 2001

The Species at Risk Act: An Overview and Update

In February 2001, the federal government introduced Bill C-5, the Species at Risk Act (SARA), for First Reading. Thereafter, SARA was debated at Second Reading, and has been referred to the Standing Committee on Environment and Sustainable Development.

At the present time, the Standing Committee is considering comments on SARA (and proposed amendments thereto) submitted by various governmental officials, stakeholders, and environmental groups, including CELA. Although the legislative process seems to have bogged down somewhat for SARA, Environment Minister David Anderson has recently declared that the passage of SARA is a "chief priority" for the federal government.

Given the federal inertia in enacting endangered species legislation, one must treat the Minister's assurances with some caution. After all, this is the same federal government that has twice failed to enact endangered species laws (Bills C-65 and C-33) in recent years.

More importantly, the Minister's assurances beg the fundamental question of whether SARA, as drafted, will actually confer effective and enforceable protection for all species at risk (and their habitat) across Canada. Indeed, a perusal of SARA's key provisions reveals that SARA may not live up to the Minister's broad claim that the law "will guarantee that all species in Canada, wherever they live, are protected".

For example, SARA will not be administered by a single agency or department. Instead, the legislation will be administered by three federal Ministers - the Minister of Fisheries and Oceans (aquatic species), the Minister of Heritage (species in national parks and federal heritage sites), and the Minister of the Environment (all other species and overall implementation of SARA). Given this division of responsibility (and the inevitable turf squabbles between the different ministries), one must question whether this is the most efficient or effective delivery strategy for ensuring a unified and consistent approach to species protection.

Similarly, there are unresolved concerns about the listing process under SARA. As drafted, SARA entrenches the highly regarded Committee on the Status of Endangered Wildlife in Canada (COSEWIC) on a firm legislative basis. However, COSEWIC is largely limited to an advisory role under SARA, as the ultimate decision to list - or not list - a species at risk is made by federal Cabinet Ministers, not COSEWIC experts.

This listing decision is arguably the most important determination to be made under SARA because if a species is not designated, the prohibitions and protections in SARA are simply inapplicable to that species. In CELA's view, COSEWIC's findings on species' population status should be binding on the federal Cabinet and get automatically incorporated into regulations. After all, the assessment of whether a species is at risk in Canada is, in essence, a biological determination rather than a political question. If there is a need for "flexibility" in balancing the competing ecological and socio-economic interests (protecting habitat vs. logging or mining), this is best accomplished via adaptive recovery strategies and management plans, rather than via upfront decisions of which species are at risk.

Another concern about SARA is the narrow and highly discretionary approach to protecting species and their habitat. As drafted, SARA prohibits the killing, harming or taking of a listed species, and similarly prohibits the destruction of the "residence" (eg. den, nest, or other dwelling place). However, these prohibitions do not apply to species on provincial lands (other than aquatic species and migratory birds), unless the federal Cabinet makes a discretionary order providing that the prohibitions apply to such species. Such an order cannot be made unless the federal Environment Minister opines that a province's laws "do not protect the species" (whatever that phrase means), and until the Minister consults with his provincial counterparts. In CELA's view, such hurdles are hardly conducive to the timely and effective protection of species at risk across Canada. If it is necessary to include the so-called "federal safety net" in SARA, then the starting point should be the inclusion of all species at risk under SARA (as determined by COSEWIC), subject to provincial "opt outs" only if strict "equivalency" criteria are satisfied by the provincial endangered species regime.

The fact that the above-noted prohibition only protects "residences", rather than habitat, has prompted considerable public criticism of SARA. Since habitat loss is the major threat facing most Canadian species at risk, there is widespread consensus that the key to protecting species is protecting habitat, not just the individual trees or dens where species may spend part of their time. As drafted, SARA does not confer mandatory protection of habitat for any species at risk, unless the federal Cabinet makes a discretionary decision to designate and protect "critical habitat" for particular species on a case-by-case basis. Even if the Cabinet was actually inclined to make such an order for a particular species, SARA prescribes no timelines for the indentification of critical habitat.

The discretionary approach to habitat protection under SARA stands in sharp contrast to mandatory habitat protections found in American and Mexican endangered species laws. Unless SARA is amended to make habitat protection mandatory rather than optional, then it is highly doubtful that SARA can achieve its stated purpose of preventing extinction and/or extirpation, and ensuring the recovery of species at risk.

It should also be noted that SARA authorizes the establishment of a compensation fund to provide money where the designation and protection of critical habitat imposes "extraordinary impacts" upon landowners or other parties. While this may make critical habitat designations somewhat more palatable to landowners, very few details are known about the scope or nature of the intended compensation scheme since SARA fails to set out compensation procedures or eligibility criteria. More fundamentally, it is doubtful whether the federal government would be legally obliged to provide such compensation unless the habitat designation amounted to an actual "expropriation" as defined by Canadian courts.

Finally, SARA provides a number of useful mechanisms to facilitate public access to information and the decision-making process under SARA. However, SARA no longer contains a "citizen suit" provision that would enable individuals to go to the civil courts to seek judicial relief in respect of contraventions of the Act. Citizen suit provisions already exist in the Canadian Environmental Protection Act, 1999 and a number of provincial laws, and had been proposed in a previous version of SARA (e.g., Bill C-65). SARA's current lack of a citizen suit provision raises important concerns about ensuring legal accountability for non-compliance with (or non-enforcement of) SARA.

In light of these and other concerns, it remains to be seen how SARA's numerous discretionary provisions will be interpreted and applied by the federal ministries responsible for the Act. Indeed, it is unknown when - or whether - SARA will be passed and proclaimed into force. Accordingly, it is somewhat premature (if not erroneous) at this time for Minister Anderson to assure Canadians that SARA (as drafted) will "guarantee" the protection and recovery of all species at risk in Canada.
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Rick Lindgren is a lawyer at CELA