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New and Pending Safeguards for Species at Risk Compensation for Habitat Protection Still Uncertain
November, 2007
By Janice Walton
The protection of wild flora and fauna that are considered to be at risk of extinction in Canada - referred to generally as "species at risk" or "endangered species" - occurs under a patchwork of policies and federal/provincial programs that have gradually developed over the last 30 years or so. While such programs have been around for some time, in most jurisdictions it is only recently that they have begun to be codified into laws that establish protection for species and under which formal planning for protection and recovery of such species is now occurring.
The establishment of laws and activities by regulators to protect species and their habitats is an ongoing process. Several provinces have promised to revise their laws to increase protection, and the federal government has gradually begun to carry out planning and establish protected critical habitat for some species, and to enforce the protections when its laws are contravened. Notably, Ontario has taken steps to dramatically strengthen its endangered species law.
CANADA
Over the few years since the federal Species at Risk Act (SARA), many actions required under SARA remain outstanding. For example, while recovery planning is definitely ongoing, a number of the deadlines set out in SARA for completion of strategies and designation of critical habitat have passed without the required work being finished. And notably, the establishment of regulations needed for payment of compensation for losses incurred due to critical habitat protection, has not yet occurred.
One interesting development on the enforcement side was the recent imposition of a one-year prison term on an individual convicted of harvesting endangered abalone in B.C., demonstrating that the courts are prepared to impose stiff sentences on those prepared to ignore SARA's prohibitions.
ONTARIO
On May 16, 2007, the Ontario government passed the Endangered Species Act, 2007 (ESA 2007), which was described by the government as being "among the strongest such legislation in North America". When it comes into force in June 2008, the ESA 2007 will replace the obsolete and little enforced Endangered Species Act, 1971.
Under the ESA 2007, it is an offence to kill, harm or capture any living member of an extirpated, endangered or threatened species, or to possess, buy or sell or trade any living or dead member of an extirpated, endangered or threatened species. In addition, it is an offence to damage or destroy the habitat of an endangered or threatened species.
One of the features of the ESA 2007 that distinguishes it from most other similar legislation in Canada is the process for legally listing species, which, in turn, triggers the protections and planning provisions in the Act. Listing in Ontario will be based solely on the assessment by the Committee on the Status of Species at Risk in Ontario (COSSARO) without any discretion on the part of the regulator or the Ontario legislature.
This differs from the listing process under SARA, which allows the federal Cabinet to decide not to list a species, a power that has been exercised several times. It remains to be seen how much of an impact the lack of regulatory or political oversight in Ontario will have on the listing of species.
The ESA 2007 also establishes broad habitat protections which, unlike in SARA, occur automatically, unless the government takes specific action to limit the protection. "Habitat" is defined as "an area on which the species depends, directly or indirectly, to carry on its life processes, including areas used for reproduction, rearing, hibernation, migration or feeding" and is protected unless the government limits the protection to certain areas, which it can do by regulation. The ESA 2007 does not contain any provisions for compensation for losses sustained because of the protection of species or their habitats on private land.
The ESA 2007 allows the government to enter into stewardship agreements "for the purpose of assisting in the protection or recovery of a species" which can authorize a party to engage in an activity otherwise prohibited. In addition, the Minister (or the provincial Cabinet) may issue permits for activities that would otherwise be prohibited, under strict conditions set out in the Act.
The ESA 2007, like SARA, requires the government to establish a recovery strategy for each species listed in Ontario as endangered or threatened. It also contains specific recognition of the rights and circumstances of Aboriginal Peoples. The ESA 2007 includes broad enforcement powers and significant potential penalties, including up to CAD 2 million for corporations and, for individuals, CAD 500,000 and prison.
OTHER PROVINCES
In February 2007, the federal government and Québec entered into a Cooperation Agreement for the Protection and Recovery of Species at Risk in Québec, which establishes the framework for a co-operative approach to the administration of species at risk programs in Québec. For species of common interest to Canada and Québec, precedence is given to Québec in the leadership of protection activities for critical habitats.
The Agreement also requires the creation of an administrative classification of species at risk to establish equivalency between COSEWIC and Québec species classifications. The Agreement also establishes procedures for consultation with Aboriginal Peoples and other stakeholders.
In 2004, British Columbia passed amendments to its Wildlife Act to establish broader protections for species at risk. However, the amendments do not come into force until the government establishes a regulation with the list of species to be protected. More than three years after passing the amendments, no regulation has been introduced, and broad species protection in British Columbia remains isolated to certain industry sectors such as forestry.
New Brunswick, the Northwest Territories, and the Yukon have all indicated an intention to pass new species at risk legislation, however, despite preparation of position papers by all three on what such legislation would look like, none have gone so far as to introduce bills to their respective legislatures.
Janice Walton is an Associate practicing in the Environmental Group in the Vancouver office of Blake, Cassels & Graydon LLP, where she deals with both litigation and corporate/commercial aspects of environmental law. Janice has recently authored the only one-stop source for endangered species law in Canada - Blakes Canadian Law of Endangered Species, published by Thomson Carswell. She can be reached by telephone at 604-631-3354 or by e-mail at janice.walton@blakes.com
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