Which laws apply to species at risk in Canada?

On the federal level, the primary species at risk legislation is the Species at Risk Act – often referred to as SARA. This is legislation which is meant to prevent species from becoming extinct or extirpated, provide for the recovery of species at risk, and ensure that species of special concern do not become threatened or endangered. [1] The legal protections under the 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.

How does the Species at Risk Act work?

The Act enables a panel – the Committee on the Status of Endangered Wildlife in Canada or COSEWIC – to meet twice yearly in order to assess species and classify them under one of the categories listed in the ‘Categories of Species at Risk’ section, above. [2] Once a classification has been made, COSEWIC makes a recommendation that those species determined to be at risk be added to SARA under the appropriate category. [3] After receiving this recommendation, the federal government begins a consultation process during which they study the economic and social effects that may accompany the inclusion of these species on a protected list. Although there are legislative timelines embedded within the classification process, the inclusion of a socioeconomic analysis has meant that any species considered to have high social and/or economic value are not necessarily added to the list. Take, for instance, the case of the chinook and sockeye salmon. COSEWIC has on several occasions recommended that both these fish be classified as endangered. However, this classification would stop all commercial harvesting so, for ‘social and economic reasons’ the salmon remains unclassified and therefore unprotected. [4]

Notably, prohibitions that protect specific species under the federal SARA apply only to fish, migratory birds, and other species only when they are located on federally controlled land. This limits the effect of the SARA although there is the opportunity for the federal government to extend these prohibitions to private and provincial lands, This would require additional action by the federal government through the “safety net” provisions which are discussed below.

Some Problems with the SARA

One downside to the SARA are the regular delays that plague the classification and recovery plan processes. Although the SARA includes certain deadlines – for example, once COSEWIC makes a recommendation about a species, the federal Minister of the Environment has 90 days to submit a report to the Public Registry with the government’s decision for a plan for the treatment of that particular species[5] – often the government fails to comply with these deadlines. In particular, when it comes to the 90 day deadline on a Minister’s report, the question of when this 90 day countdown actually begins is still up for debate. [6] Does it begin when the recommendation is actually made or when the Minister acknowledges formal receipt of the recommendation – perhaps months down the road?

The problems do not stop there, because once a recovery strategy is laid out (including a design for the recovery of at risk populations), any deadlines that are to be included in the plan are discretionary and are outlined by the Minister not by legislation. This means that if the government chooses not to enforce deadlines – perhaps because they are facing an upcoming election or are worried about the economy – there is little that anyone can do to stop them.

One example of this delay occurred in April 2008 when COSEWIC recommended that the Minister consider a designation of special concern for Canadian polar bears. Unfortunately, the Minister did not formally acknowledge receipt of this recommendation until November 2008, which meant that the 90-day countdown did not actually start until at least 6 months after the recommendation was made. Even after this acknowledgment, it took until 2011 for the Minister to make a listing recommendation. [7] This delay of more than three years is important to consider because the legislation cannot be amended to add a species to a specific schedule as being at risk until a formal listing recommendation is made. This is just one example of how delays have plagued SARA’s implementation. When species’ populations are falling to dangerously low levels, the impact of these types of delays could be devastating to an already precarious situation.

Despite these challenges, SARA has some important sections that allow its important critical habitat protections to extend over provincial land. One of these is Section 80, the SARA section enabling protection orders. This section allows the government to issue an emergency authorization extending SARA’s protections to a particular species and all of its critical habitat, regardless of whether this habitat is located on federal or provincial land. These recommendations can be made when the federal Minister issues an opinion that the species faces an imminent threat to its survival or recovery, threats which are not being adequately managed by provincial authorities. [8]

Sounds like a great idea, doesn’t it!

In 2013, the emergency protection order provision was used for the first time, when an order was issued for the protection of the Greater Sage Grouse, a bird whose critical habitat can be found in Southeast Alberta and Southwest Saskatchewan. This order came after a court decision required the federal Minister to identify, in a recovery strategy document, as much critical habitat as it was possible to identify at the time – even if the entire critical habitat had not yet been identified. [9] It was only after the Court released this decision that the federal Minister of the Environment released the opinion that the Greater Sage Grouse faced imminent threats to its survival and recovery. 

The action plan subsequently released by the federal government limited existing industrial activities to certain times of day and limited new development in certain parts of the Greater Sage Grouse’s critical habitat. This effort was heralded as a success by environmental groups and the population of Greater Sage Grouse has started to bounce back. In opposition of the order, a junior oil and gas company along with the city of Medicine Hat filed a lawsuit in federal court seeking to oppose the federal government’s protection order after the oil and gas company was faced with bankruptcy as being beyond the jurisdiction of the federal government. [10] The matter has not been adjudicated in the courts and it seems that it might be settled out of court. Unfortunately, due to opposition of this sort, the protection order provision remains underutilized.

A positive step for species at risk came with a Federal Court of Appeal decision issued in May 2020 on the Western Chorus Frog file. The Western Chorus Frog which is found in Great Lakes/St. Lawrence region and is subject to an Emergency Order under sections 80 and 97(2) – the same sections that apply to the protection of the Greater Sage Grouse. [11] In this decision, the Federal Court of Appeal found that the emergency order issued for the Western Chorus Frog was constitutional and properly falls under the federal criminal law power.[12] This decision may have influenced a settlement in the sage grouse matter.

Even more recently, the Wilderness Committee, a Vancouver-based environmental non-governmental organization has demanded that the federal government implement emergency order protections for British Columbia’s spotted owls.[13] When the petition was filed in October 2020, there was only one remaining breeding pair and three total individuals out of a previously large population of spotted owls. These owls are threatened by logging in the area and Wilderness Committee is asking for federal protection for their habitat.[14]

Another option for extending federal control onto provincial territory is with a similar provision known as the safety net provision – found in sections 34 & 35 of SARA. The SARA safety net can be used to extend federal protection to animals living on provincial or territorially owned land (which includes private land). This section can be invoked if the federal government determines that the provinces are not doing enough to protect an at-risk species. [15] This provision has never been utilized, despite coming into force in 2004. 

Do you know of any other species at risk in Alberta that this legislation might help, if these provisions could be applied?

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[1] Species at Risk Act, SC 2002, c 29.

[2] Species at Risk Act, s 14.

[3] Species at Risk Act, s 15(1).

[4] World Wide Fund for Nature, “Living Planet Report Canada: A National Look at Wildlife Loss” (2017) at 12. See 2020 version here: https://wwf.ca/wp-content/uploads/2020/09/Living-Planet-Report-Canada-2020.pdf. 

[5] Species at Risk Act,  s 25(3).

[6] Species at Risk Act, s 25(3).

[7] Shaun Fluker & Jocelyn Stacey, “The Basics of Species at Risk Legislation in Alberta” (2012) 50:1 95 at 101.

[8] Species at Risk Act, ss 80(2).

[9] Nigel Bankes, Sharon Mascher & Martin Olszynski, Can environmental laws fulfill their promise? Stories from Canada (2014) 6:9 Sustainability 6024 at 6033.

[10] The Canadian Press, “Sage grouse protection order challenged by Alberta city, oil company” (3 January 2014) CBC News online: http://www.cbc.ca/news/canada/calgary/sage-grouse-protection-order-challenged-by-alberta-city-oil-company-1.2483759.

[11] Emergency Order for the Protection of the Western Chorus Frog (Great Lakes / St. Lawrence — Canadian Shield Population, SOR/2016-211 online: https://laws.justice.gc.ca/eng/regulations/SOR-2016-211/index.html.

[12] The Maison Candiac Groupe Inc v Attorney General Of Canada, 2020 CAF 88.

[13] Ecojustice, Press Release, “Ecojustice, Wilderness Committee demand federal emergency protections for dwindling northern spotted owls” (14 October 2020) online: https://ecojustice.ca/pressrelease/ecojustice-wilderness-committee-federal-emergency-order-spotted-owls/

[14] Sarah Cox, “Canada’s last breeding pair of endangered spotted owls found in valley slated for imminent logging” (14 October 2020) The Narwhal online: https://thenarwhal.ca/canadas-last-breeding-endangered-spotted-owls-in-bc-valley-logging/

[15] Species at Risk Act, ss 34 & 35.