Federalism & Species at Risk

In the Fundamentals of Law section, which can be found here and the Constitutional Law section which can be found here, you can find an overview of what federalism means in Canada and more particularly what it means for environmental law. If you need a quick refresher, go check out these sections and meet us back here.

Federalism poses unique difficulties for species at risk. While the SARA is a relatively detailed and high-quality piece of legislation, its protection provisions do not apply to all species across Canada.  This means that if an at-risk mammal lives on provincial land in Alberta, it will be protected by the weaker Wildlife Act not by SARA. The legal protections in SARA are, for the most part, restricted to species found on federal lands, such as national parks, and to species that otherwise fall under federal legislative powers, such as fish or migratory birds. These limitations make it more difficult to measure how well the law protects species at risk in Alberta. [1] For reference, SARA only applies to approximately 5% of Canada’s land mass. [2]

Provinces, especially Alberta, have historically been opposed to federal environmental initiatives, citing provincial control over natural resources. Generally, provinces do not want federal interference in their land-use planning or industry development – a likely side effect of federal ventures into provincial species at risk legislation.

Although SARA does include both a safety net provision which allows Cabinet to extend SARA protection to species on provincial and territorial lands and an emergency protection order provision which protects species on both federal and non-federal lands and can be issued by the federal Cabinet – only the emergency protection order provision has been used, and still very rarely. 

What do the courts have to do with protecting species at risk?

If a province or territory opposes the use of SARA provisions, they can challenge that decision in court, arguing that it interferes with the province’s constitutionally awarded power over natural resources or provincially owned land and private property.  If a court accepted this argument certain sections or application of certain SARA provisions may be found to be unconstitutional and therefore inapplicable or of no force and effect. Although this is a possibility that the federal government is likely considering, it is also possible that this provision would be found to fall under federal control in the Constitution and would therefore be valid law. [3]

There is some suggestion that beyond any potential constitutional issues, decisions not to use the emergency protection order under SARA are more political than they are legal. The federal and provincial governments are always balancing their relationships and the federal government may not want to step on a particular province’s toes – for any number of political reasons. [4]

<< Which laws apply to species at risk in Canada?

Case Study: Caribou >>

[1] Shaun Fluker & Jocelyn Stacey, “The Basics of Species at Risk Legislation in Alberta” (2012) 50:1 95 at 97

[2] David R. Boyd, Unnatural Law: Rethinking Canadian Environmental Law and Policy (Vancouver: UBC Press 2003) at 184. 

[3] David R. Boyd, Unnatural Law: Rethinking Canadian Environmental Law and Policy at 185.

[4] Wendy Francis, “Endangered Species Protection in Alberta: Where’s the Beef?” Canadian Parks and Wilderness Society at 38 online: http://www.env.gov.bc.ca/wld/documents/ss06francis.pdf.