Species at Risk – Introduction

The Species at Risk Act (“SARA”) 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.  The Act may also apply to provincial lands if it is determined that provincial laws do not effectively protect listed species, or their residences or critical habitat (s. 34).  To date, Alberta does not have endangered species legislation.

SARA took nearly ten years to pass for a variety of reasons, including jurisdictional wrangling between the federal and provincial governments, major policy debates over how habitat should be protected and whether scientists or politicians should decide which species would be legally protected.  Furthermore, there were fears about U.S. style litigation over endangered species and concerns about private land issues and compensation.

The purpose of SARA is to:

• prevent Canadian species from becoming extirpated or extinct;
• provide for the recovery of endangered or threatened species; and
• encourage the management of species of special concern to prevent them from becoming endangered or threatened.

The Act pursues these ends by providing a mechanism for species at risk to be identified and, where appropriate, given legal status.  In addition, SARA recognizes that compensation may be needed to ensure fairness following the imposition of the critical habitat prohibitions.  In the period leading to enactment and for some time thereafter, compensation was an extremely contentious issue, especially for the agricultural community.  Much of the concern was founded on the mistaken assumption that the habitat provisions would have extensive application on private lands, which they do not.  For the rare instances where the habitat provisions do apply to private land, the Government of Canada may provide “fair and reasonable” compensation for losses due to extraordinary impacts arising from a prohibition on the destruction of critical habitat (s. 64).

The Parks Canada Agency, Fisheries and Ocean Canada and Environment Canada share responsibility for implementing SARA.  Ministers have the authority to make decisions in their respective areas of responsibility and are required to consult with each other as necessary on matters relating to SARA.

The listing process is at the heart of SARA and is a prerequisite to protection under SARA.  Unless a species is included in the “List of Wildlife Species at Risk” in Schedule 1 to the Act (“List”), it will not be eligible for protection.

The Act establishes the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”).  COSEWIC is not part of the federal government – it is an independent body of experts who are responsible for assessing and identifying species at risk based on best available information.  Best available information includes scientific knowledge, community knowledge and Aboriginal traditional knowledge.  After receiving a recommendation from COSEWIC, the government consults with concerned ministers, relevant wildlife management boards and the public to consider many factors, including possible social and economic implications of listing the species. The government then decides whether to add a species to the List of Wildlife Species at Risk.

Once a species is added to the List, the provisions under SARA apply to protect and recover the species. It is illegal to kill, harm, harass, capture or take an individual of any Listed species.  The List continually evolves as species are added or removed as their status changes.

COSEWIC must review the classification of each species at risk at least once every 10 years, or at any time if it has reason to believe the status of the species has changed significantly.  COSEWIC must annually prepare a completed list of every wildlife species it has assessed and a copy of that list must be included in the public registry.  Any person may apply to COSEWIC for an assessment of the status of a wildlife species.

No person can damage or destroy the residence of an endangered or threatened species.  As well, a person can not damage or destroy the residence of an extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada.  “Residence” means a dwelling place such as a den or nest that is occupied, or habitually occupied, at any time during their life cycle.  “Critical habitat” means 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 onus is on companies to determine whether Listed species, their residences or critical habitat are present in the areas in which they operate.  If the land you operate on has current or previous occurrences of Listed species, residences, or critical habitat, it is recommended that you perform an inventory on the property.  Taking stock of rare species is a complex task and should be conducted by specialists.

Once you have determined that a Listed species may live in or pass through the areas you operate in or if you are aware that residences or critical habitat may exist, you must:

• ensure that the activities you carry out in those areas comply with SARA requirements;
• ensure that the competent minister is notified if your project requires an assessment of environmental effects and is likely to affect a SARA listed species or its critical habitat;
• apply for an authorization if a proposed or current activity could contravene a SARA prohibition; and
• take SARA requirements into account when you sign agreements with subcontractors.

SARA has been criticized for a failure to lay out clear compliance rules as they pertain to the automatic prohibitions and enforcement provisions of the Act.  In the next issue of EnviroNotes, we will discuss implications of Incidental Harm Agreements and Permits as they relate to automatic prohibitions.