In 1992 the UN Conference on Environment and Development (the Earth Summit) was held in Rio de Janeiro, Brazil. One product of this summit was the Convention on Biological Diversity Signing parties were required, "as far as possible and as appropriate", to (under Article 8):
(c) Regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use;
(d) Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings;
(f) Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies;
..." and "...
(k) Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations"
Canada was the among the first industrialized nations to ratify the agreement, which, while not legally binding, left the signatories with a moral obligation to meet these and other demands.
In the following 10 years, three attempts to pass federal legislation for the protection of species at risk failed. Bill C-65 (Canada Endangered Species Act) and Bill C-33 (Species at Risk Act) died on the Order Paper in 1997 and 2000, respectively, when federal elections were called.
Bill C-5 (Species at Risk Act or 'SARA') also died on the Order Paper when Parliament was prorogued in September of 2002. However, under a new parliamentary procedure, it was reinstated in the Senate in October of the same year.
SARA passed through the Senate and received Royal Assent on December 12, 2002. Two-thirds of the act came into force on June 5 of 2003 (sections 2, 31, 37-56, 62, 65-76, 78-84, 120-133 and 137). This included the establishment of COSEWIC as a legal entity and the preparation of recovery strategies and action plans for species on the legal list.
As of June 1, 2004 the rest of the Act came into force, including basic prohibitions, prohibitions against the destruction of critical habitat and all other enforcement measures.
This section provides a general description of how the Species at Risk Act functions. A more detailed guide to the Act (upon which this summary is based) is available at Ecojustice (formerly the Sierra Legal Defense Fund), and at the end of this document. The actual bill is available at the Department of Justice website under Chapter 29 (Bill C-5). Now that SARA has come into force there is additionally a public registry where information on and documents relating to the Act are available.
To be protected under SARA a species must be on the List of Wildlife Species at Risk in Schedule 1 of the Act: this is the "legal list".
The source of this list is the national list of species at risk prepared by the Committee on the Status of Wildlife in Canada (COSEWIC). Under the Act, species included on COSEWIC's list must be included in the legal list if Cabinet does not take contrary action within nine months of receiving COSEWIC's assessment.
Upon receiving a species assessment from COSEWIC the federal Cabinet (on the recommendation of the Minister of the Environment) must do one of the following:
1) Accept the assessment and add the species to the legal list
2) Decide not to add species to the legal list
3) Refer the matter back to COSEWIC for further information or consideration
If options 2 or 3 are taken (and the Cabinet approves of the choice) the Minister of the Environment must make a statement regarding the reasons for the decision available on the public registry. If the Cabinet takes no action within nine months of receiving the assessment, the species will be added to the legal list by default.
Categories in the List of Wildlife Species at Risk:
- Extirpated species: a wildlife species that no longer exists in the wild in Canada, but exists elsewhere in the wild.
- Endangered species: a wildlife species that is facing imminent extirpation or extinction.
- Threatened species: a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction.
- Species of special concern: means a wildlife species that may become a threatened or endangered species because of a combination of biological characteristics and identified threats.
Note: there are two additional listing mechanisms: "Citizen Listing" and "Emergency Listing". These are reviewed in detail in A Guide to Canada's Species at Risk Act (pdf.)
Once a species is placed on the legal list the following prohibitions come into immediate effect:
Species listed as Extirpated, Endangered, or Threatened cannot:
1) be killed, harmed or traded (including parts)
2) have their "residence" damaged or destroyed
As SARA is a federal law, these prohibitions only apply on federal lands, and to aquatic species and migratory birds listed under the Migratory Birds Convention Act (MBCA). Neither prohibition applies to species listed as "of special concern".
All species, once listed as Endangered, Threatened or Extirpated under SARA will have recovery strategies prepared for them. This strategy must be completed within one year of listing for endangered species, and within two years for threatened and extirpated species.
Before the recovery plan is written, the competent minister (ie. the minister whose jurisdiction the particular species falls under) will determine whether recovery of the species is "technically and biologically feasible" using the "best available information, including information provided by COSEWIC". Recovery strategies must be prepared whether or not recovery is deemed feasible; however, the required content of the strategy will differ:
If recovery is feasible the strategy must contain:
- A list of threats to the survival of the species, identified by COSEWIC, including habitat loss.
- A description of the species and its needs, consistent with information provided by COSEWIC.
- Identification of threats to the survival of the species, threats to its habitat, and a description of the broad strategy to be taken to address these threats.
- Identification of the species' critical habitat, based on the best available information (including that provided by COSEWIC), and examples of activities that will result in its destruction (If there is not enough information available to identify critical habitat, the strategy must include a schedule of studies that will make such identification possible).
- A statement of population and distribution objectives and a general description of the research and management activities needed to meet these objectives.
- A statement of when one or more action plans, in relation to the recovery plan, will be completed.
If recovery is not feasible the strategy must contain:
1) A description of the species and its needs.
2) An identification of the species' critical habitat (to the extent possible).
3) The reasons why recovery is not feasible.
The proposed recovery strategy, once prepared, will be filed on the public registry. Within 60 days of filing, any person may file written comments on the strategy with the competent minister. The minister must then, in the following 30 days, consider any comments received and make changes to the recovery plan that he/she decides are appropriate. At the end of this 90-day period the recovery strategy will be finalized and a copy made available on the public registry.
The competent minister can make amendments to the recovery strategy at any time. However, unless the change is considered minor, he/she must make the change subject to public comment (exactly as above). Additionally, if the change relates to the time required to complete the action plan, he/she must provide reasons for the amendment and make these reasons available on the public registry.
Reports on the implementation of each recovery strategy and the progress made towards meeting its objectives must be produced by the competent minister five years after the strategy is filed. Reports will continue to be produced every five years, until the recovery strategy's objectives are met or recovery of the species is no longer deemed feasible. Copies of each report will be available on the public registry.
While the recovery strategy outlines the general framework for species recovery, the action plan contains specific measures that are to be taken to ensure recovery. Unlike the recovery strategy, there is no set time period in which the plan must be completed.
The action plan must:
- Identify the species' critical habitat, based on the best available information (including that provided by COSEWIC), and cite examples of activities that will result in its destruction
- Identify any portion of critical habitat that is not protected
- State measures that are to be taken to protect species critical habitat
- State measures that are to be taken to implement the recovery strategy and indicate when these measures will take place
- Describe the methods used to monitor the recovery of the species and its long term viability
- Evaluate the socioeconomic costs of the action plan and the benefits to be derived from its implementation
As with the recovery strategy, the proposed action plan will be filed on the public registry. Within 60 days of filing, any person may file written comments on the plan with the competent minister. In the following 30 days the competent minister must consider any comments received and make changes to the plan that he/she decides are appropriate. At the end of this 90-day period the action plan will be finalized and a copy made available on the public registry.
The competent minister can make amendments to the action plan at any time. These changes will not be subject to a public comment period but must be filed on the public registry.
In order to put into practice the measures set out in the action plan, the competent minister is required to pass any regulations that are (in his/her opinion) necessary. The competent minister is also allowed to use any powers she/he has under other federal legislation to implement the action plan.
As with the recovery strategy, the competent minister must monitor the action planÍs implementation and its progress towards meeting its objectives. A report must be produced by the competent minister five years after the plan comes into effect and made available on the public registry.
CRITICAL HABITAT PROTECTION
Critical Habitat is defined as:
"habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species' critical habitat in the recovery strategy or action plan for the species."
180 days following the identification of the critical habitat of an endangered, threatened or extirpated species (in the recovery strategy or action plan), all of this habitat on federal lands is legally protected.
Note that, as the recovery plan must be finished 1-2 years following listing of a given species (this includes the 90 day public comment and ministerial response period), the total time period between listing of a species and the protection of its habitat will be 545 days for endangered species and 910 days for threatened and extirpated species once they are listed. Additionally, if there is not enough information available to identify critical habitat in the recovery strategy, such identification will be left to the action plan, which has no set time limit for completion.
Under the Act, critical habitat protection is broken into three categories: federal protected areas, the exclusive economic zone/continental shelf of Canada/ aquatic species, and habitat outside federal lands for MBCA birds.
- Protection of critical habitat in federal protected areas consists of
publication of a notice in the Canada Gazette 90 days after such habitat
is identified, and legal protection 90 days following this (the 180 day time period).
- Protection of critical habitat in exclusive economic zone/continental shelf of
Canada/aquatic species is by ministerial order. The competent minister must make this order within 180 days of identification of critical habitat.
If such an order is not made the minister must state on the public registry how the critical habitat (or portions of the critical habitat) are otherwise
- Critical habitat for MBCA birds will be protected within
federal jurisdiction by ministerial order (unless such
habitat is found on federal protected land (see above)) within 180 days of identification.
If the critical habitat is found outside of federal jurisdiction it may be protected if the federal Cabinet makes a discretionary order on the recommendation of the competent minister. The competent minister must make such a recommendation within 180 days of critical habitat identification if he/she is of the opinion that the critical habitat or any portion of the critical habitat is not legally protected. If the competent minister does not make a recommendation to the federal Cabinet he/she must state on the public registry how this critical habitat is otherwise legally protected.
Note that under the MBCA habitat protection outside of federal jurisdiction may only apply to nests (this has been previously argued by the federal government).
If the Minister of the Environment is of the opinion that all critical habitat within federal jurisdiction is not protected within 180 days of its identification he/she is required to file a report on the public registry outlining the steps taken to protect such habitat, and continue to make reports every 180 days until such habitat is protected or no longer identified as critical habitat.
1) Provinces and Territories
- Safety Net Mechanisms
- Species considered by Provincial or Territorial Governments to be at Risk
2) Species of Special Concern
3) Offences and Punishments
4) Reports and Review of the Act
5) More Information
PROVINCES AND TERRITORIES
"Safety Net" Mechanisms
Under the National Accord for the Protection of Species at Risk the federal, provincial and territorial governments agreed to establish complimentary legislation and programs to provide "effective protection" for species at risk across the country. In this way, while SARA applies only to federal jurisdictions, the provinces and territories must respond to SARA by passing similar laws.
Additionally, there are two "safety net" provisions in SARA which enable the federal government to take discretionary action should a province or territory fail to protect a listed species or a listed species' critical habitat.
Both the basic prohibitions safety net and the critical habitat safety net are only activated if the Governor in Council, at its discretion and under recommendation of the Minister of the Environment, makes an order that they apply to a particular province or territory. Before making a recommendation to the Governor in Council, the Minister of the Environment must first consult the appropriate provincial/territorial minister and the appropriate wildlife management board (in areas where such a board is authorized to perform wildlife management functions under a land claims agreement).
Both safety nets do not apply to aquatic species and bird species under the MBCA. Basic prohibitions already apply to these species on provincial and territorial lands (see Basic Prohibitions); critical habitat for aquatic species is automatically protected in all areas of Canada and discretionary protection of critical habitat for MBCA birds is already covered under Critical Habitat Protection.
Species considered by Provincial or Territorial Governments to be at Risk
Species that are listed by provincial or territorial governments as threatened or endangered but are not on SARA's legal list may have Basic Prohibitions extended to them where they are found on federal land. Critical Habitat Protection may also be extended to "any part of the habitat that the provincial or territorial minister has identified as essential to the survival or recovery of the species". The federal Cabinet may apply these prohibitions if the competent minister recommends it.
SPECIES OF SPECIAL CONCERN
As species that may become a threatened or endangered species because of a combination of biological characteristics and identified threats, Species of Special Concern receive very little under SARA: basic prohibitions and the protection of critical habitat do not apply; recovery strategies and action plans are not required. Instead, a management plan for both the species and its habitat is required.
Contents of the management plan are not prescribed under SARA beyond the requirement that the plan "include measures for the conservation of the species that the competent minister considers appropriate".
This plan must be completed within three years of listing and posted on the public registry. It is subject to the same public comment/ministerial response period, ministerial amendment rights, and five-year implementation-report requirements as the recovery plans and action plans for endangered, threatened and expatriated species.
OFFENCES AND PUNISHMENTS
If a person disregards the following they have committed an offence under SARA:
- The basic prohibitions for species on the legal list
- The basic prohibitions extended to species classified by a province or territory as endangered or threatened, if they are found on federal land
- The prohibition against destruction of critical habitat
- The prohibition against destruction of critical habitat extended to species classified by a province or territory as endangered or threatened if they are found on federal land
- The critical habitat safety net applied within provinces or territories
- The mandatory requirement to assist enforcement officers and the prohibition against making false statements to an enforcement officer or otherwise obstructing or hindering the officer's work
Two additional offences that relate to special components of SARA are not covered here but can be found in A Guide to Canada's Species at Risk Act (p.58)
If the offence is prosecuted as a summary offence, corporations may be fined up to $300, 000 ($50,000 in the case of non-profit corporations). Individuals may be fined up to $50,000 or imprisoned for one year, or both.
If the offence is prosecuted as an indictable offence, corporations may be fined up to $1 million dollars while non-profit corporations and individuals may be fined up to $250,000. Individuals may additionally be imprisoned for up to five years.
REPORTS AND REVIEW OF THE ACT
The Minister of the Environment is required to produce two types of reports under SARA: an annual report and a report on the Status of Wild Species. Both reports must be tabled before parliament and made available on the public registry.
The annual report includes: COSEWIC species assessments, summaries of the preparation and implementation of recovery strategies/action plans and orders made under SARA in the previous year.
A report on the status of wild species will be made every five years and will require research into and the cataloging of the estimated 140,000 species found in Canada.
Review of the Act
SARA will be reviewed by Parliament once, five years after the Act comes into force. Note; however, that Parliament is able to review any legislation at any time it chooses.