The goal of maintaining and enhancing biodiversity is one of the underpinnings of public policy and legislation that seek to protect species at risk. Canada was the first country to ratify the UN Convention on Biological Diversity which entered into force on December 29, 1993. In the Convention, the contracting parties begin by saying they are conscious of the intrinsic value of biodiversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity. They then list threats to biological diversity. Article 6 of the Convention states that each contracting party will adopt a national strategy, plans and programs for the conservation and sustainable use of biological diversity. Article 8(f) states that each contracting party will rehabilitate and restore degraded ecosystems and promote the recovery of threatened species.
The federal government issued the Canadian Biodiversity Strategy in 1995. It begins with the proposition that “[t]he global decline of biodiversity is now recognized as one of the most serious environmental issues facing humanity”, and goes on to state: “[a]s a result of human activities, ecosystem, species and genetic diversity are being eroded at a rate that far exceeds natural processes”. In 1996, the federal government and the provinces signed the Accord for the Protection of Species at Risk, setting out the respective roles and responsibilities of each level of government in this area.
While many people think of endangered species in terms of mammals and other terrestrial animal species, species at risk legislation also covers species of plants, aquatic species, and insects. Indeed, the statutory definition of species in most legislation is sufficiently broad to cover any living species except for micro-organisms. At the federal level, legislators rely upon the assessment and classification of species by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). Although it is an independent body, COSEWIC receives general direction from the Canadian Endangered Species Conservation Council, which is comprised of federal, provincial and territorial Ministers responsible for wildlife conservation. COSEWIC meets annually to discuss and evaluate its ongoing assessment work, and is required to prepare and publish a list of assessed species each year.
The federal Species At Risk Act (or SARA) came into force on June 1, 2004. The Act affirms the status of COSEWIC as an independent body responsible for assessing and identifying species at risk. Under SARA, COSEWIC may recommend classifying species at risk in one of three categories: endangered, threatened, and special concern. A fourth category, “extirpated” is reserved for any species that still lives somewhere in the world, but no longer exists in Canada. A similar classification system has been adopted in the provinces and territories where species at risk legislation has been enacted. In Ontario, this role is assigned to the Committee on the Status of Species at Risk in Ontario (COSSARO), whose members are appointed by the Lieutenant Governor in Council.
The number and the identity of species considered to be endangered or threatened varies from jurisdiction to jurisdiction, as a function of both the presence of species within the jurisdiction and the level of assessment activity being conducted. There are 486 species currently on the federal Species at Risk List. Of these, 348 are listed as either endangered or threatened on a Canada-wide basis. By comparison, there are 207 species on the Ontario Species at Risk List, of which 145 are classified as either endangered or threatened. Both lists include extirpated species and species of special concern, as well as a number of species which have been sub-divided into geographically distinct populations. The Lists include a number of mammals, but the vast majority of the species are plants, reptiles, amphibians, fish, birds, insect and molluscs.
SARA makes it an offence to harm threatened or endangered species, and prohibits damage or destruction of their habitat. However, these prohibitions apply only when the listed species are found on federal land (including federal parks), unless an order is made by the Governor in Council to apply the prohibitions to lands in a province that are not federal lands. An important exception to this limitation is that the prohibitions apply to migratory birds and aquatic species listed as extirpated, endangered and threatened anywhere they occur, including private lands, without the need for an order.
Several provinces and territories have enacted legislation dedicated to the protection of species at risk and their habitat on both private and public lands within their jurisdictions. In some jurisdictions, such as British Columbia, general wildlife laws contain species at risk protection. In those jurisdictions where species at risk protection is legislated, the typical scheme provides both species protection (i.e. prohibitions against killing or harming individual members of species) and habitat protection for species listed as endangered or threatened.
The Ontario Endangered Species Act, 2007 came in force on June 30, 2008. A transition rule suspends the application of habitat protection for many species until the earlier of June 30, 2013 and the date when a habitat regulation for the individual species is made. The scheme of the Ontario legislation mandates the formulation of recovery strategies for threatened or endangered species. Such strategies may include the adoption of regulations to provide enhanced habitat protection, including the protection of “indirect habitat” and recovery areas beyond those depended upon by existing members of the species.
Only a small number of recovery strategies have been published, and therefore we are only at the inception of species-specific habitat regulation in Ontario. If a property contains several species classified as threatened or endangered (or is adjacent to one that does), and habitat regulations for each of those species come into effect, this could significantly reduce the property’s development potential.
A permit mechanism is available under the Ontario scheme to authorize activities that may result in the destruction of species members and/or their habitat. The criteria proposed by the province for granting such authorizations appear to be aimed strongly at achieving overall enhancement goals as well as mitigation. In the meantime, SARA is undergoing its first review by Parliament. Going forward, the protection of species at risk may play an important role in shaping policy around land use in Canada.