Intervenor: Vol 24. No 3 July - September 1999

Will Canada's Endangered Species Law Have Teeth?

For the first time, the federal government's Throne Speech included a commitment to protect endangered species and their critical habitat. This commitment follows an August 1999 proposal by Environment Minister David Anderson to finally enact federal endangered species legislation in Canada. Canada still lacks a federal law to protect species at risk. In contrast, the United States has had endangered species legislation since 1973. For extinct Canadian species-such as the passenger pigeon, sea mink, and blue walleye-the recent federal announcements will do nothing. For the other 300 species at risk in Canada-such as the beluga whale, eastern cougar, wolverine and grizzly bear-federal promises offer a glimmer of hope, provided that an effective law is actually passed by Parliament. Canada signed the 1992 international Convention on Biological Diversity which requires the passage of endangered species legislation. In 1993, Parliament's Standing Committee on the Environment concluded that this international obligation requires Canada to develop an integrated legislative approach for protecting endangered species and habitat. In 1994, the federal government announced its intention to develop endangered species legislation. In 1996, after extensive public consultation, the federal government introduced its proposed endangered species law, Bill C-65. It was widely criticized by scientists and conservation groups who objected to the Bill's limited application to fish, migratory birds, and species on federal lands. Public criticism also targeted the Bill's overpoliticized process for listing species at risk, and the its ineffectual habitat protection provisions. Fortunately, Bill C-65 died on the order paper when the federal election was called in 1997. Following his appointment as Environment Minister in the summer of 1999, Mr. Anderson briefed Cabinet on his proposal to enact federal endangered species legislation. Although few details were released, it appears that Mr. Anderson's proposal differs from Bill C-65 in several key respects. For example, it reportedly protects the habitat of endangered species on both public and private lands. This represents a significant improvement over Bill C-65, which would have only protected individual "residences" (ie, dens or nests). Similarly, Mr. Anderson's proposal will invoke the federal government's "criminal law" power under the Constitution. Among other things, this puts the Bill on firm constitutional ground and allows it to contain strong prohibitions and stringent penalties. Monitoring and enforcement, however, remain key concerns. Environment ministries across Canada have experienced crippling cutbacks and staff reductions in recent years. Such downsizing clearly affects the ability of public officials to monitor and enforce environmental laws. To overcome this problem, Mr. Anderson's new law should contain a "citizen suit" provision which would enable private citizens to go to court to enforce the law where government officials refuse to do so. Such a provision exists in environmental laws in some Canadian and American jurisdictions, and even Bill C-65 included a "citizen suit" provision. In addition to allowing "citizen suits", Mr. Anderson's new law should also contain:

  • mandatory listing of all species found to be at risk by an independent scientific committee;
  • designation and protection of critical habitat of listed species;
  • strong sanctions against harming individual members of listed species;
  • mandatory development of recovery plans (ie, habitat restoration) for listed species; and
  • thorough assessment of all undertakings or projects which may adversely affect listed species or their habitat.

It's premature to conclude Mr. Anderson's proposal will be effective and enforceable protection for endangered species. The text of Mr. Anderson's proposed law is not yet available and some of the provisions (such as enforcement on private land) are sure to be in for a rough ride. Mr. Anderson should resist the call for compensation for private landowners-why should the federal government pay people to comply with the law of the land? Although there is an expectation that the new law may be passed by June 2000, it is unknown when the new law will be proclaimed into force. In the meantime, as the legislative process drags on, the number of species at risk in Canada will continue to increase at an alarming rate.________________________________Rick Lindgren is a lawyer at CELA