Species at Risk – Incidental Harm Agreements and Permits

1 septembre 2010

( Disponible en anglais seulement )

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.

The listing process is at the heart of the SARA.  The Act 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 List of Wildlife Species at Risk (List).  The List continually evolves as species are added or removed or their status changes.

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).  It also becomes illegal to damage or destroy the residence of (i) one or more individuals of an endangered or threatened species or (ii) 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.

SARA is currently undergoing a 5 year review that commenced in the spring of 2009 (s. 129).  As part of the 5 year review process, industry has raised concerns regarding the practical application of certain parts of SARA including the automatic prohibitions and section 73 of the Act.

The automatic prohibitions under the Act (including but not limited to s. 32, 33 and 58) create a conundrum for industry.  Many industrial facilities were constructed before the Act came into force (sometimes several decades ago) and may well have unavoidable incidental effects on Listed species.  As soon as a species is listed, a facility with any incidental impact on a Listed species must either shut down or be in immediate non-compliance with SARA.  Although an operator can enter an Incidental Harm Agreement, obtain an Incidental Harm Permit, or enter into a Conservation Agreement, all of these protections take time to finalize and there is nothing in the Act to address non-compliance in the interim period – which may be a considerable amount of time.

Under section 73, the Minister may enter into an “Incidental Harm Agreement” with a company, or issue an “Incidental Harm Permit” to a company.  Incidental Harm Agreements or Permits authorize oil and gas activities that affect a Listed species, any part of its critical habitat, or the residence of its individuals.  The Minister may enter an agreement or issue a permit only if:

(a) the Minister feels that affecting the species is “incidental” to carrying out the activity; and

(b) it is determined that the activity will not jeopardize the survival or recovery of the species.

Incidental harm can be distinguished from “direct” harm.  Direct harm occurs where an activity is intended to do the harm, such as hunting or fishing.

Before an Incidental Harm Agreement can be entered, or an Incidental Harm Permit granted, an applicant must have considered other reasonable alternatives, have taken all feasible measures to minimize the impact, and must substantiate that any harm caused by the activity will not jeopardize the species’ survival or recovery.

The Incidental Harm Agreement and Permit provisions raise the following issues.  Firstly, there are no current policies or guidelines that define – or even illuminate – the meaning of “all reasonable alternatives”, “best solution” and “all feasible measures”.  Secondly, and perhaps more importantly, the maximum term for agreements is 5 years and permits is 3 years – and there are no provisions for renewal of agreements or permits.  This resulting disconnect between the life of an agreement (5 years)/permit (3 years), and the life of an oil and gas project (20 or more years) raises serious concerns for the industry.  Thirdly, Incidental Harm Agreements and Permits apply to a single species only.  Oil and gas activities can be spread out over large geographical areas and may impact more than 1 species.  Far from streamlining the regulatory process, the current legislation requires proponents to apply for Incidental Harm Agreements and/or Permits for each species it may incidentally impact – which may be a number of species, depending on the development.

Although the Act provides for Incidental Harm Agreements and Permits to authorize activities affecting Listed species in any part of their residence or critical habitat, no such agreements or permits have been issued to date.  Nor have any authorizations for industrial activities been issued under s. 74 or 78 of the Act.  Practically speaking, there are no effective mechanisms under the Act for managing industrial activities.  The lack of an effective, transparent permitting process that incorporates input from industry means that critical habitat simply becomes an exclusion area for industrial activity.

It is hoped that ultimately, SARA will be amended to provide for a more efficient mechanism for authorizing resources development activities that incidentally impact species at risk or their residence or critical habitat.  Suggestions include:

  • amending the Act to allow for agreements and permits that are either not restricted by an end date or that can be automatically or otherwise efficiently renewed;
  • amending section 73 to create a new category of authorizations which would apply to more than 1 species and more than 1 activity and which would be applicable for long periods of time;
  • developing a policy or guideline that clarifies such key terms as (1) reasonable alternatives, (2) feasible measures, (3) best solution, and (4) jeopardize the survival or recovery of a species; and
  • amending the Act to exempt existing facilities from automatic prohibitions, provided they have either applied for a SARA permit, are engaged in recovery planning, or are engaged in the development of an Incidental Harm or Conservation Agreement.

It is hoped that the current 5 year review of SARA will provide an opportunity to correct some of the practical problems for industry that exist as a result of the current drafting of the Act and lack of clear policy direction.

Next issue: Listing and Recovery Planning under SARA

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