The Species at Risk Act (“SARA” or the “Act”) came fully into force on June 1, 2004. The goal of the Act is to prevent wildlife species from becoming extinct and to help species at risk recover. SARA is intended to work with complementary provincial and territorial legislation to protect all wildlife species at risk everywhere in Canada.
The Act applies on federal lands, to aquatic species and to birds under the Migratory Birds Convention Act.
On private or provincial/territorial land, the prohibitions apply only to:
- aquatic species listed as endangered, threatened or extirpated in Schedule 1 of SARA; and
- migratory birds listed in the Migratory Birds Convention Act, 1994 and also listed as endangered, threatened or extirpated in Schedule 1 of SARA.
In some circumstances, the prohibitions could also be applied through a s. 34 order to other Listed species on private or provincial/territorial land if provincial/territorial legislation or voluntary measures do not adequately protect the species and its residence. Public consultation would first be sought in accordance with normal federal government regulatory procedure.
In our last issue, we talked about the implications of Incidental Harm Agreements and Permits as they relate to automatic prohibitions under the Act. In this issue, we will discuss some of the issues facing industry relating to recovery planning for Listed species.
The listing process is at the heart of SARA. SARA establishes the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”). COSEWIC will make recommendations to government whether a species should be added to the SARA List of Wildlife Species at Risk (“List”). COSEWIC must carry out its functions based on the best available information on the biological status of a species, including scientific knowledge, community knowledge, and aboriginal traditional knowledge.
Once a species is added to the List, it becomes illegal to kill, harm, harass, capture or take an individual of any extirpated, endangered or threatened species (s. 32) (“extirpated” means a wildlife species that no longer exists in the wild in Canada, but exists elsewhere in the wild). It also becomes illegal to damage or destroy the residence of:
- one or more individuals of a endangered or threatened species; or
- an extirpated species if a recovery strategy has recommended the reintroduction of that species into the wild in Canada (s. 33).
There are also prohibitions on destruction of critical habitat (s. 58).
“Residence” means a dwelling place, such as a den or nest that is occupied, or habitually occupied at any time during their life cycle. In contrast, “critical habitat” means the habitat that is necessary for the survival or recovery of a Listed species. Critical habitat is identified in the “recovery strategy” or “action plan” for that species. The List continually evolves as species are added or removed or their status changes.
The process of assessing species can be difficult, complex, and costly. However, within 90 days of receiving an assessment report of a wildlife species from COSEWIC, the federal Minister of Environment is required to post a report regarding how the Minister intends to respond to the assessment (to List, not List, or refer back to COSEWIC).
Recovery and Action Plans
Recovery of species is a central component of SARA and is specifically included in the stated purposes of the Act. The recovery process under SARA is a two stage process and applies to all Listed species. The first stage involves preparation of a recovery strategy that outlines the overall scientific framework for recovery. The second stage involves preparation of an action plan or plans, which outline the specific measures to be taken on the ground to implement the recovery strategy.
Under SARA, the competent minister must prepare a recovery strategy for all listed species. Timelines for developing and implementing recovery strategies or management plans depend on the status of the species. Strategies for endangered species have shorter timelines than those for threatened species or species of special concern. Recovery strategies for endangered species must be included in the public registry within 1 year after listing. Recovery strategies for threatened or extirpated species must be included in the public registry within 2 years after listing. If strategies or plans are not created within required timelines, or are not implemented in a timely fashion, then the federal government can step in to reserve critical habitat on federal land until such plans are approved and implemented. If a province is not adequately addressing a species at risk, this federal intervention can extend to provincial Crown land (s. 34).
Action plans outline the specific measures to be taken on the ground to implement the recovery strategy. The competent minister prepares action plans based on the recovery strategy. Action plans must:
- to the extent possible based on the best available information, identify the species’ critical habitat;
- provide examples of activities that are likely to result in destruction of the species’ critical habitat;
- state the measures to be taken to implement the recovery strategy (including any conservation agreements entered into pursuant to s. 11 of SARA);
- state the methods that will be used to monitor recovery of the species;
- evaluate the socio-economic costs of the action plan; and
- evaluate the benefits that will be derived from implementing the action plan.
Listing can have far reaching implications for industry. However, in responding to an assessment, there is no legal requirement for the Minister to consult withindustry, directly affected parties, or the public. This lack of input has raised concerns about the quality of scientific data available to support listing decisions. There has also been considerable controversy surrounding:
- consistent decision-making across government departments and species;
- the role of socio-economic factors in decision-making; and
- transparency of the process prior to listing.
At one point, the Minister of Environment did undertake to develop guidelines for listing species at risk. However to date, there are no SARA policies that clarify the role of socio-economic factors and considerations in the listing process, and there is no understanding by the public of how information is gathered for the socio-economic analysis.
As part of the 5 year review process, the Canadian Association of Petroleum Producers (CAPP) has recommended on behalf of the oil and gas industry that a policy be developed to clearly articulate the factors considered by the government when making decisions to list, de-list or emergency list species. Industry would also like to ensure that the scale and scope of socio-economic analysis for listing and recovery planning be proportionate to the magnitude and complexity of potential impacts.
Recovery plans are important because they are the primary mechanism by which critical habitat is identified. Once critical habitat is identified, it must be protected. Habitat protection does not, therefore, commence under SARA until critical habitat has been identified in a recovery strategy or action plan – which could take years. Recent criticism has focused on the lack of recovery plans and uncertainty regarding critical habitat. It makes it very difficult for industry to undertake long term planning without any real sense of what habitat is “critical” at law and in need of protection.
In 2006, the Stratos Inc. report titled Formative Evaluation of Federal Species at Risk Programs found that there was still a great deal of uncertainty and concern in the core government departments about when and how action planning would be undertaken and implemented in support of recovery strategies. At that time, each recovery planner/team was developing action plans on a stand-alone basis, without reference to priority-setting mechanisms or resource allocations across species, regions, or activities.
In the current recovery-action plan process, there is no express requirement for the government to work collaboratively with the oil and gas industry to achieve species protection while balancing socio-economic concerns. Many would like to see SARA take a more cooperative approach toward wildlife and environmental conservation in collaboration with the oil and gas industry. To date, there are few written policies that encourage collaboration and cooperation between all levels of government and industry for the ultimate protection and recovery of wildlife species. More cooperation is required between industry and species or ecosystem experts prior to posting recovery strategies. To foster this cooperation, industry recommends that a SARA policy be established that recovery teams must include representatives from government, industry, researchers and other interested and affected stakeholders. In this way, there will be a better chance of achieving real species protection without having to sterilize industrial development.