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Update on Endangered Species Protection in Canada.

Abstract

The Canadian government introduced the Species at Risk Act in April 2000. In its current form, the legislation is weak and will do little to halt the slide towards extinction of many Canadian species. Unlike the U.S. Endangered Species Act, which contains clear prohibitions against the harming of species and their habitats wherever they reside, many of the provisions in the Canadian Act rely on the discretion of politicians to act in a manner which is beneficial to species at risk. The legislation contains no automatic protection for the habitat of species at risk (loss of habitat is the primary cause of species endangerment) and the scope of the prohibitions against harming of individual species at risk and their residences is limited to federal lands (excluding the three northern territories which are under federal authority), some migratory birds, and some aquatic species. Species that migrate across the Canada-U.S. border are not specifically addressed by the legislation. Final decisions about which species will be listed, and therefore receive legal protection, will be left up to politicians, not scientists. The current Act does not fulfill all of Canada's commitments under international and national agreements, nor does it live up to the government's own promises or meet the expectations of the majority of Canadians who believe that the federal government should take the lead role in protecting species at risk.

Introduction

Canada is home to some 57,000 identified species (Canadian Wildlife Service 1995). Of these, 353 are on the national list of species at risk. Twenty-seven species are already gone from the Canadian wild, and another 326 will meet the same fate unless factors affecting their well-being are reversed. Some species like the Vancouver Island marmot (Marmota vancouverensis), the Newfoundland population of the American marten (Martes americana atrata), and the copper redhorse (Moxostoma hubbsi) are found only in Canada. Others, like the grizzly bear (Ursus arctos) and woodland Caribou (Rangifer tarandus caribou), refuse to recognize international boundaries and range freely between Canada and the U.S. While American laws protect them in the U.S., the absence of similar legislation in Canada and many of its provinces means that these species can be legally hunted in some jurisdictions.

Because of its decentralized power structures, passing endangered species legislation in Canada is considerably more cumbersome than in the U.S. Under the Constitution Act of 1867, much of the control over natural resources was devolved to the provinces. The federal government retained control over its lands, which include national parks, military sites, and some agricultural lands, inland fisheries and the seacoast, and "Indian lands" (this includes the three northern territories). Because the Constitution Act granted Parliament the power to implement Imperial treaties such as the Migratory Birds Convention Act (MBCA) signed by England (on behalf of Canada) and the United States, the Canadian government also has authority over birds covered by this convention. Matters of exclusive provincial authority include provincial public lands and their forest resources, civil and property rights, and other matters of a purely local concern. The Constitution Act was amended in 1982 when the Constitution was repatriated from England to grant the provinces exclusive authority over non-renewable natural resources, forestry resources and electrical production facilities.

Authority over natural resources is jealously guarded by the provinces and any "interference" by the federal government in what is perceived to be provincial jurisdiction would further destabilize sensitive federal-provincial relations. Because not all provinces and territories have passed stand-alone endangered species legislation, many of Canada's species at risk may fall through the cracks due to jurisdictional wrangling.

Provincial legislation

In 1996, the provincial, territorial and federal governments of Canada signed the National Accord for the Protection of Species at Risk (Accord); an agreement that committed them to developing complementary endangered species legislation of their own. To date, only half (7 of 14) of these governments have passed such legislation, and for those jurisdictions that do have legislation, the laws are generally weak. Listing of species is usually at the discretion of provincial cabinets and only four of the provincial laws provide automatic protection of habitat for listed species. Habitat degradation and loss is considered to be the most significant cause of species endangerment worldwide (Wilson 1992), and in Canada, it is thought to account for at least 75% of the species on the national list.

Federal legislation

In 1992, Canada was the first Western nation to sign the Convention on Biological Diversity. The convention required signatories to pass legislation to protect endangered species and their habitats. Four years later, the year that all Canadian governments agreed in principal to the Accord, the Canadian government introduced legislation aimed at protecting endangered species (Bill C-65). This bill died on the Order Paper six months later when Parliament was dissolved for elections.

In April 2000, the federal government introduced the Species at Risk Act, SARA, which is currently working its way through the legislative process in the House of Commons. SARA strives to avoid conflicts between land users and the government by striking the right balance between voluntary stewardship and legislative measures. Many Canadians believe such conflicts to be a significant problem in the U.S. Endangered Species Act where some landowners have developed a "shoot, shovel and shut up" approach to avoid being subject to what they perceive as heavy-handed federal legislation.

Instead of building consensus between stakeholders, SARA has failed to gain the support of most resource users or of a single major environmental group. In fact, several key natural resource industry groups such as the Mining Association of Canada and the Canadian Pulp and Paper Association teamed up with environmental groups such as the Sierra Club of Canada, the Canadian Nature Federation, and the Canadian Wildlife Federation to press for significant improvements to the bill that would strengthen protective measures and encourage landowners and industries to protect species at risk.

The species-based approach to conservation of endangered species in SARA is similar to that of the U.S. Endangered Species Act. Little is done to prevent species from getting on the list in the first place, since conservation efforts are triggered by the listing process. This approach has been criticized as being ineffective and expensive since conservation programs that target entire ecosystems, rather than each of the constituent species individually, are thought to be more effective. In SARA, it is possible for non-threatened species to benefit from the listing of another species, since a multi-species or an ecosystem approach may be adopted when preparing a recovery strategy for a species. However, since this is left to the discretion of the Minister, this approach may rarely be used.

Federal powers and the need for a strong national law

Species under federal authority (those on federal lands, birds covered under the MBCA, and aquatic species covered by the Fisheries Act) need a strong federal law to protect them. Development of an effective network of provincial and territorial laws can only be attained through strong federal leadership. Until the federal government meets its commitments under the Accord, there will be no impetus for the provinces to meet theirs.

Canadian species will continue to be at risk until a comprehensive federal-provincial network of laws is in place. For example, the province of British Columbia, with its temperate climate, and varied geography, is home to at least 70% of Canada's birds and mammals, half of which are found exclusively in this province. British Columbia has no endangered species law. Until legislative gaps such as this are plugged, it will be up to the federal government to bring these species under its umbrella of protection. There are some tools that may provide the federal government with the legal authority to do this.

In addition to authority over federal lands and aquatic and migratory bird species, the Constitution Act also granted the federal government several broader powers over matters not clearly within provincial authority: Peace Order and Good Government (POGG) and the Criminal Law Power. POGG gives the federal government authority in three areas: national emergencies, in matters having a "national dimension," and over non-local matters on which the Constitution is silent. Of these, the "national concern" category is most relevant to species at risk. To be considered a "national concern" the scope must be national and the concern must be one that cannot be addressed provincially. It is not difficult to demonstrate that the scope of endangered species is national. Many range across provincial and even international boundaries. Species restricted to a single province present some difficulties for POGG, but it can be argued that even these are of concern to all Canadians. For example, organizations like the Vancouver Island Marmot Recovery Foundation receive donations from individuals across Canada to protect a species that most Canadians will never encounter (the Vancouver Island marmot-Marmota vancouverensis, is found only on an island off the coast of the province of British Columbia). Surveys have repeatedly demonstrated the importance of preserving Canadian biodiversity to Canadians, and it is obvious from the profusion of national and provincial symbols depicting wildlife, that wildlife is highly valued by Canadians. While it may be difficult to persuade the courts that legislation aimed at preserving species that reside within a single province has a national dimension, endangered species legislation would have as its goal the protection of all Canadian species at risk. Surely, the loss of Canadian biodiversity stemming from numerous species extinctions across the country would be of "national concern."

It is also reasonably easy to demonstrate that protecting endangered species cannot be done on an ad hoc, provincial basis since most of them range across provincial and or national borders. Protecting these transboundary species is necessarily a federal obligation, since provincial jurisdiction does not extend beyond provincial territory.

While the argument for the use of POGG to regulate species that move across provincial and international boundaries is likely a winning one, it is less clear how a court would rule on intra-provincial species. The federal government's ability to use its Criminal Law Power in areas of provincial jurisdiction is less contentious. It is generally accepted, though not tested in court, that this power provides the authority to prohibit and punish conduct considered harmful to endangered species. As this power already prohibits cruelty to individual animals, it is not a stretch to apply it to an entire species. The Supreme Court of Canada, in a case involving Hydro-Quebec (R. v. Hydro-Quebec, 1997 3 S.C.R. 213), has already ruled that the federal government can use its Criminal Law Power to prohibit environmental harm.

Many legal experts, and the government of Canada, believe that the Criminal Law Power can be used to protect "critical habitat" even if it is outside of federal jurisdiction. Critical habitat is defined in SARA as that part of a species' habitat that is necessary for the survival or recovery of the species. However, the issue of whether this power can be used to protect the "habitat" of an endangered species in areas of traditional provincial authority is far murkier. SARA defines habitat (aquatic species excepted) as the area or type of site where an individual naturally occurs or formerly occurred and has the potential to be reintroduced. The greater the impact of legislation on provincial jurisdiction, the greater the risk of the legislation being found unconstitutional. If you consider that the habitat needs of a large mammal like a grizzly bear can be enormous, the duty imposed on a province to protect that habitat can be quite onerous, as compared to the duty to protect only the individual or its residence. Further, because it is based on prohibitions punished by penalties, offences under the Criminal Law Power must be clearly defined. Such precision is not available for habitat, particularly at the time a species is listed, which is when the prohibitions would come into play. Under SARA, habitat is defined on a species-by-species basis during the recovery stage--a process that may not happen for some time after listing. For an enforcement officer to be able to specify that a violation has occurred under SARA, he/she would need to be able to determine that something has been harmed. Though reasonably straightforward in the case of an individual of a species, and in some cases, for its residence, it is generally not obvious when habitat has been harmed.

The Species at Risk Act

In several key areas such as habitat protection, SARA is weaker than the government's previous attempt at endangered species legislation (Bill C-65) and it is certainly weaker than the U.S. Endangered Species Act. The key features of SARA are considered briefly below.

Listing

The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) has been responsible for listing endangered species in Canada for close to 25 years, though this listing process has carried no legal weight. COSEWIC consists of scientists from federal and provincial governments, non-governmental conservation organizations and from academia.

Under SARA, COSEWIC will be given the legal authority to determine which species are at risk, but the federal Cabinet will have final listing authority. This means that biological factors will not be the only considerations determining whether species such as the Peary (Rangifer tarandus pearyi) and woodland Caribou and the bowhead whale (Balaena mysticetus), species that are an important part of aboriginal hunting traditions in northern Canada, and marine species such as the Atlantic salmon (Salmo salar) and the Atlantic cod (Gadus morhua) which are economically important to the people of eastern Canada, are listed. While such socio-economic considerations should not be ignored in determining how scarce resources are allocated for species recovery, they have no role to play in determining whether a species gets listed. Such decisions should be based entirely on scientific considerations. Socio-economic factors should be considered at the protection stage when all concerned stakeholders are at the table and requirements such as habitat have been considered.

Six Canadian provinces have opted for a political listing system in their own legislation, but only Nova Scotia allows scientists to determine the legal list of species at risk. When listing is left to political discretion, most species in need of protection do not make the legal list. In the provinces that have political listing, only about 30% of the COSEWIC-listed species have been listed by the provinces. If species are left off the legal list, they receive no protection against killing, no recovery plans are written, and there is no support for landowners who voluntarily opt to protect them.

SARA contains no provisions to roll over COSEWIC's existing list of 353 species. When it receives Royal Assent, the new legislation will apply to no species. Cabinet would have 30 days to decide which of the current endangered or threatened COSEWIC species would be on the list. No time limit is specified for the listing of species of "special concern." There are no guarantees that any of the currently listed species will get protection under SARA.

Prohibitions

SARA includes hefty fines for harming endangered and threatened species or their residences. However, the scope of application is limited. The law applies automatically only to species on some federal lands, aquatic species protected under the Fisheries Act and migratory birds protected under the MBCA. The prohibitions do not apply automatically on territorial lands that are under federal control. Without the territories, federal lands make up only about 4% of Canada's landmass. This abdication of federal authority over territorial lands places territorial governments in an untenable position. None have standalone endangered species legislation--likely because they have been waiting for the federal government to clarify its position on territorial lands. The territories do not have the authority to make laws governing species under federal control. Under SARA, northern species such as the grizzly bear, polar bear (Ursus maritimus), woodland caribou and Peary caribou, wolverine (Gulo gulo), and wood bison (Bison bison athabascae) will fall through the gaps in federal-territorial jurisdiction. Territorial Wildlife Acts allow hunting of these COSEWIC-listed species.

For the remaining lands--the vast majority of Canada--SARA stipulates that when the provinces fail to protect a species at risk, the federal government may use its "safety net" provisions to protect the species. Given the long history of federal-provincial tensions in Canada, it is highly unlikely that federal discretionary powers will ever be exercised. The federal government has had discretionary powers allowing it to regulate environmental practices in place for nearly 30 years. These powers have never been used in provincial jurisdiction. A rarely, if ever, utilized power will be unlikely to provide a true "safety net" for species that fall through gaps in provincial laws. The federal government has the authority through its Criminal Law Power to prohibit the harming of an individual species at risk or its residence. However, the government's use of this power in SARA is puzzling. By providing automatic protection only to species under federal jurisdiction and discretionary protection to those that are not, the legislation suggests a regulatory approach, rather than one based on prohibitions. This undermines the Criminal Law Power--the federal government either has the authority to protect individuals and their residences anywhere in Canada or not. It is inconsistent for the government to maintain that it has this power, but will use it only when it sees fit.

Habitat

Critical habitat protection measures are not mandated under SARA, even in areas of clear federal jurisdiction. Such measures are left up to the discretion of the Minister. The fact that there is no requirement to protect the habitat of a single species, even those found within Canada's national parks, provides a clear indication of the government's lack of commitment to protecting endangered species. It also violates the government's own promises. In the 1999 Throne speech, Prime Minister Jean Chretien promised to introduce legislation that will ensure that species at risk and their critical habitat are protected. On the same occasion, the Environment Minister, David Anderson, noted that "... any species protection legislation must include provisions for the protection of critical habitat of endangered species. This is fundamental. No habitat, no species."

The government's rational for failing to automatically protect the habitat of species that fall within federal jurisdiction in SARA is not clear. The province of Quebec provides us with an example of what is likely to happen when decisions about whether to protect habitat are left up to politicians. In Quebec, protection of the habitat of animal species is decided after a species is listed on a case-by-case basis. To date, seven animals have been listed; none have received habitat protection measures.

The discretionary federal habitat "safety net" in SARA is puzzling for the same reasons noted above for the discretionary measures in place to protect individual species and their residences beyond federal jurisdiction. If the federal government has the authority to protect critical habitat under its Criminal Law Power when the provinces fail to do so, then this power should be exercised consistently, not on a discretionary ad hoc basis.

Recovery

SARA incorporates a two-stage recovery planning process. A recovery strategy must be prepared for all endangered and threatened species if recovery is deemed to be feasible. It is here that critical habitat is identified for each species. Once this is done, an action plan is prepared. There are no time limits imposed on the completion of such plans and there is no obligation on the part of government to implement any of them.

Compensation and stewardship

The preamble to SARA notes that voluntary stewardship initiatives should be supported. However, SARA does little to promote "volunteerism." Should the federal "safety net" be invoked on private lands, there is compensation for extraordinary losses due to measures put in place to protect endangered species. However, the details are not spelled out in the legislation. It is not clear who will be eligible for compensation, that is, whether it will extend beyond private landowners to include individuals, corporations and communities who may be economically disadvantaged by measures put in place to protect species at risk.

Along with SARA, the government introduced a promising new stewardship tool that will allow Canadians to benefit from tax concessions by donating land or through easements that restrict development on lands considered by the government to be "ecologically sensitive." Such stewardship tools could complement legislative measures, but it remains to be seen how many Canadians will successfully navigate the bureaucratic process required to meet government requirements.

No matter how effective the tools, success will ultimately be determined by funding considerations. Budget 2000 announced a fund of $90 million (Canadian dollars) to be spent over 3 years for endangered species. Although this is a significantly greater investment in species at risk than has been made in the past, it includes costs for the administration of the new Act and for the operation of COSEWIC, not just species recovery. The Canadian Wildlife Service believes that at least $100 million (Candian) is needed per year just to fund recovery activities for the currently listed species.

Canadians and species at risk

If passed in its current form, SARA will fall short of the Canadian public's desire for effective legislation to protect Canada's biodiversity. National polls have repeatedly demonstrated overwhelming public support for strong endangered species legislation. A poll conducted by POLLARA in August 2000, commissioned by the International Fund for Animal Welfare, found that nearly two-thirds of Canadians believe that the federal government is not doing enough to protect plant and animal species at risk of extinction. More than three-fifths (62%) of respondents felt that scientists should take the lead role in determining which species are protected versus 18% who thought that government should take the lead in listing species. The vast majority of those asked (81%) believed that that laws protecting endangered species should also make it mandatory to protect the species' habitat. A clear majority (85%) felt that federal laws should protect species not just on federal lands, but also those on provincial and private lands.

With the majority of Canadians, key natural resource industries, and environmental groups calling for stronger and more effective endangered species legislation, it is difficult to understand why the federal government has introduced legislation that will do little to ensure the protection of Canadian biodiversity.

Literature cited

Canadian Wildlife Service. 1995. Feasibility Study on the Establishment of a Canadian National Conservation Data Centre.

Wilson, E.O. 1992. The Diversity of Life. Harvard University Press, Cambridge, Massachusetts.

Laura Telford Canadian Nature Federation, 1 Nicholas Street, Ottawa, Ontario, Canada, K1N 7B7; Itelford@cnf.ca
COPYRIGHT 2000 University of Michigan, School of Natural Resources
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Author:Telford, Laura
Publication:Endangered Species Update
Date:Sep 1, 2000
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