Part I of III - Introduction
The Species at Risk Act (Canada) (“SARA” or the “Act”) came fully into force on June 1, 2004. SARA is directed towards preventing wildlife species from becoming extinct or lost from the wild, helping in the recovery of species that are at risk as a result of human activities, and promoting stewardship. SARA has become a point of discussion of late as a result of two fairly recent federal court decisions and the current five year review of the Act.
SARA took nearly ten years to pass for a variety of reasons, including jurisdictional wrangling between the federal and provincial governments, major policy debates over how habitat should be protected and whether scientists or politicians should decide which species would be legally protected. Furthermore, there were fears about U.S.A. style litigation over endangered species and concerns about private land issues and compensation.
The purpose of SARA is to:
- prevent Canadian species from becoming extirpated or extinct;
- provide for the recovery of endangered or threatened species; and
- encourage the management of species of special concern to prevent them from becoming endangered or threatened.
SARA pursues these ends by providing a mechanism for species at risk to be identified and, where appropriate, given legal status. In addition, SARA recognizes that compensation may be needed to ensure fairness following the imposition of the critical habitat prohibitions. In the period leading to enactment and for some time thereafter, compensation was an extremely contentious issue, especially for the agricultural community. Much of the concern was founded on the mistaken assumption that the habitat provisions would have extensive application on private lands (which they do not). For the rare instances where the habitat provisions do apply to private land, the Government of Canada may provide “fair and reasonable” compensation for losses due to extraordinary impacts arising from a prohibition on the destruction of critical habitat (s. 64 SARA).
The Parks Canada Agency, Fisheries and Ocean Canada and Environment Canada share responsibility for implementing SARA. Ministers have the authority to make decisions in their respective areas of responsibility and are required to consult with each other as necessary on matters relating to SARA.
The listing process is at the heart of SARA and is a prerequisite to protection under SARA. Unless a species is included in the “List of Wildlife Species at Risk” in Schedule 1 to the Act (the “List”), it will not be eligible for protection. To view the list of wildlife species at risk and endangered species on-line, see http://www.sararegistry.gc.ca/species/default_e.cfm.
The Act establishes the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). COSEWIC is not part of the federal government – it is an independent body of experts who are responsible for assessing and identifying species at risk based on best available information. Best available information includes scientific knowledge, community knowledge and Aboriginal traditional knowledge. After receiving a recommendation from COSEWIC, the government consults with concerned ministers, relevant wildlife management boards and the public to consider many factors, including possible social and economic implications of listing the species. The government then decides whether to add a species to the List of Wildlife Species at Risk.
Once a species is added to the List, SARA applies to protect and recover the species. It is illegal to kill, harm, harass, capture or take an individual of any Listed species. It is also illegal to damage or destroy the residence of an endangered or threatened species. As well, it is illegal to damage or destroy the residence of an extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada.
On private or provincial/territorial land, the prohibitions apply only to:
- aquatic species listed as endangered, threatened or extirpated in Schedule 1 of SARA; and
- migratory birds listed in the Migratory Birds Convention Act, 1994 and also listed as endangered, threatened or extirpated in Schedule 1 of SARA.
In some circumstances, the prohibitions could also be applied through a section 34 order to other Listed species on private or provincial/territorial land if provincial/territorial legislation or voluntary measures do not adequately protect the species and its residence. Public consultation would first be sought in accordance with normal federal government regulatory procedure.
On federal land, the prohibitions apply to:
- Canada’s oceans and waterways;
- national parks;
- military training areas;
- Prairie Farm Rehabilitation Administration pastures;
- national wildlife areas;
- some migratory bird sanctuaries; and
- First Nations reserves.
The prohibitions apply to all Listed species when found on federal lands in a province. By section 36 order, SARA can also protect provincially/territorially designated endangered or threatened species, when those species are found on federal lands.
The List continually evolves as species are added or removed or their status changes. COSEWIC must review the classification of each species at risk at least once every 10 years, or at any time if it has reason to believe the status of the species has changed significantly. COSEWIC must annually prepare a completed list of every wildlife species it has assessed and a copy of that list must be included in the public registry. Any person may apply to COSEWIC for an assessment of the status of a wildlife species.
The onus is on companies to determine whether Listed species, their residences or critical habitat are present in the areas in which they operate or propose to operate. If the land you operate on, or propose to operate on has current or previous occurrences of Listed species, residences, or critical habitat, it is recommended that you perform an inventory on the property. Taking stock of rare species is a complex task and should be conducted by specialists.
Once you have determined that a Listed species may live in or pass through the areas you operate in or propose to operate in, or if you are aware that residences or critical habitat may exist, you must:
- ensure that the activities you carry out in those areas comply with SARA requirements;
- ensure that the competent minister is notified if your project requires an assessment of environmental effects and is likely to affect a SARA listed species or its critical habitat;
- apply for an authorization if a proposed or current activity could contravene a SARA prohibition; and
- take SARA requirements into account when you sign agreements with subcontractors.
Setback distances for current and proposed industrial activities currently take the form of suggested “guidelines” that are subject to change as more information is known by owners, proponents and regulators. No federal setback distances in respect of Listed species were located for this article, although we note that Environment Canada provided setback recommendations for the National Energy Board hearing regarding construction of the Keystone XL Pipeline (July 28, 2009) by TransCanada Keystone Pipeline GP Ltd.
Provincially, the Fish & Wildlife Division of Alberta Sustainable Resource Development has developed guidelines to identify general setback distances and timing restrictions within the Parkland and Grassland natural regions of Alberta. These guidelines can be accessed by searching “Select Wildlife Species and Habitat Within Grassland & Parkland Natural Regions of Alberta” on the website of Alberta Sustainable Resource Development at http://www.srd.alberta.ca/ . As well, “Wildlife Guidelines for Alberta Wind Energy Projects” (2006) summarizes potential wildlife issues associated with new wind energy projects in Alberta and provides recommended setback distances for the protection of wildlife. Presumably, any guidelines developed by Alberta Sustainable Resource Development will be considered within the context of an Energy Resources Conservation Board application for project development, subject always to assessment and input from experienced consultants and interested provincial regulators on a case by case basis.