Canada: Endangered Species Protection Escalates In British Columbia

This article was originally published in Blakes Bulletin on Environmental Law - October 2004

On June 1, 2004, the prohibitions in the federal Species at Risk Act (SARA) took effect, creating an added layer of protection for species at risk in Canada. Companies operating resource-based industries, such as forestry, mining, and oil and gas extraction, may be impacted by government actions to protect species, and by the prohibitions against harming certain species and their critical habitats.

Currently, 233 species are listed in SARA as endangered, threatened, extirpated, or of special concern. On October 18, 2004, the Federal Cabinet proposed an order to add 63 species to the list of species.

SARA provides that no one may kill, harm, harass, capture or take, possess, collect, purchase, sell or trade an individual (or any derivative of an individual) of a listed extirpated, endangered or threatened species; or damage or destroy the residence of a listed endangered or threatened species, or a listed extirpated species if a recovery strategy has recommended that the species be reintroduced into Canada. The list of endangered, threatened or extirpated species is reproduced below.

Contravention of SARA’s prohibitions can result in maximum fines ranging from $50,000 to $1,000,000 and/or imprisonment for up to five years. A person convicted of an offence for a second or subsequent time could pay up to double the maximum fines. Fines imposed for an offence involving more than one plant, animal or other organism may be calculated as though each plant, animal or organism had been the subject of a separate offence.

SARA also contains extensive planning components. Once a species has been listed in SARA, recovery strategies, action plans, management plans or stewardship plans must be developed to identify species’ critical habitat and measures necessary for recovery. As of June 1, 2004, SARA also prohibits the destruction of any critical habitat identified in a recovery strategy or action plan. All of these plans have requirements for consultation with provincial and territorial governments, aboriginal organisations, landowners, lessees and others directly affected by the plans.

Under Canada’s Constitution, the regulation of wildlife is not clearly allocated to either the federal or provincial government and, since SARA is a federal act, it is limited to federal land, except for aquatic species and migratory birds, which the federal government refers to as "federal species". So, for example, SARA will apply in British Columbia to the Limnetic Vananda Creek Stickleback, an aquatic species, and to the White-Headed Woodpecker, which is a migratory bird. Thus, anyone who harms these species or their residences may be subject to charges under either the Fisheries Act or the Migratory Birds Convention Act, and SARA, with its higher fines and potential for longer jail time. This is, of course, in addition to the stigma of being convicted of harming an endangered species.

For the rest of the species, such as the non-migratory Northern Spotted Owl, SARA’s prohibitions will only apply on federal lands, including First Nations reserves and national parks. However, SARA also contains what has been referred to as a "safety net" for protection of "non-federal species" on provincial land. On the recommendation of the federal Minister for the Environment, Cabinet may order that SARA applies to non-federal lands in a province (or territory). The recommendation is made if the Minister is of the opinion that provincial laws do not adequately protect the species. SARA also allows an Emergency Order to be made by the Minister to extend SARA’s protection to non-federal species. Whether the federal government will impose the sanctions in SARA on provincial or territorial land is, of course, highly dependent on the question of whether a province is already providing adequate protection for a species or its habitat. In response to this provision, the Government of British Columbia has amended its Wildlife Act to add provisions for protection of species at risk similar to those in SARA. As of the end of October 2004, these amendments are not in force as the province has yet to release its own list of species. When it does, there will be widespread species protection throughout British Columbia, either under SARA or the B.C. Wildlife Act.

On March 2, 2004, the Sierra Club of Canada, the David Suzuki Foundation, ForestEthics and the Western Canada Wilderness Committee petitioned the federal Minister for the Environment, David Anderson, asking him to intervene on an emergency basis to prevent the Northern Spotted Owl from becoming extinct in Canada. Under SARA, an emergency order may be made by the federal Cabinet if recommended by the Minister, who makes such a recommendation if he/she is of the opinion that the species faces imminent threats to its survival or recovery. Such emergency orders may be made for any listed species, whether or not it is a "federal" species under SARA. An emergency order for a non-federal species may identify habitat necessary for the survival or recovery of the species and prohibit activities that may adversely affect the species or their habitat.

So what about the Northern Spotted Owl, which is listed as endangered in SARA? Currently British Columbia has developed a Protected Areas Strategy to ensure its protection. However, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) has expressed concern regarding the effectiveness of the strategy. If the federal Minister agrees with COSEWIC, or the four petitioners, and decides the protections are not sufficient, there may be an order to extend SARA to the Northern Spotted Owl, either as an emergency measure which could protect particular habitat or restrict activities such as logging, or through the "safety net" which will add protections for both the species itself, its residence and any critical habitat identified in any recovery strategies or action plan. However, as the province has also taken steps to enact its own endangered species protection law, this seems unlikely to occur.

Mammals. Bear, Grizzly (Prairie population); Ferret, Black-footed; Walrus, Atlantic (Northwest Atlantic population); Whale, Grey (Atlantic population).

Birds. Prairie-Chicken, Greater; Sage-grouse, Greater (British Columbia population).

Amphibians. Salamander, Tiger (Great Lakes population).

Reptiles. Lizard, Pygmy Short-horned (British Columbia population); Rattlesnake, Timber.

Fish. Chub, Gravel; Paddlefish.

Molluscs. Wedgemussel, Dwarf.

Lepidopterans (Butterflies and Moths). Blue, Karner; Elfin, Frosted; Marble, Island.

Plants. Mary, Spring Blue-eyed; Tick-trefoil, Illinois.

Mammals. Badger, American; Caribou; Woodland (Atlantic-Gaspésie population); Fox, Swift; Marmot, Vancouver Island; Marten, American (Newfoundland population); Whale, Killer (Northeast Pacific southern resident population).

Birds. Chat, Western Yellow-breasted (British Columbia population); Crane, Whooping; Curlew, Eskimo; Flycatcher, Acadian; Owl, Barn (Eastern population); Owl, Burrowing; Owl, Northern Spotted; Plover, Mountain; Plover, Piping; Rail, King; Sage-grouse, Greater (Prairie Population); Shrike, Eastern Loggerhead; Sparrow, Henslow’s; Tern, Roaseate; Thrasher, Sage; Warbler, Kirtland’s; Warbler, Prothonotary; Woodpecker, White-headed.

Amphibians. Frog, Northern Cricket; Frog, Northern Leopard (Southern Mountain population); Frog, Oregon Spotted; Frog, Rocky Mountain Tailed; Salamander, Tiger (Southern Mountain population).

Reptiles. Snake, Night; Snake, Sharp-tailed; Turtle, Leatherback.

Fish. Dace, Nooksack; Lamprey, Morrison Creek; Salmon, Atlantic (Inner Bay of Fundy populations); Stickleback, Benthic Paxton Lake; Stickleback, Benthic Vananda Creek; Stickleback, Limnetic Paxton Lake; Stickleback, Limnetic Vananda Creek; Trout, Aurora; Whitefish, Atlantic.

Molluscs. Bean, Rayed; Lampmussel, Wavy-rayed; Mussel, Mudpuppy; Physa, Hotwater; Riffleshell, Northern; Snail, Banff Springs; Snuffbox.

Lepidopterans (Butterflies and Moths). Blue, Island; Checkerspot, Taylor’s; Ringlet, Maritime.

Plants. Agalinis, Gattinger’s; Agalinis, Skinner’s; Ammannia, Scarlet; Avens, Eastern Mountain; Balsamroot, Deltoid; Bluehearts; Braya, Long’s; Bugbane, Tall; Bulrush, Bashful; Bush-clover, Slender; Buttercup, Water-plantain; Cactus, Eastern Prickly Pear; Coreopsis, Pink; Cryptanthe, Tiny; Fern, Southern Maidenhair; Gentian, White Prairie; Ginseng, American; Goat’s-rue, Virginia; Goldenrod, Showy; Lady’s-slipper, Small White; Lotus, Seaside Birds-foot; Lousewort, Furbish’s; Lupine, Prairie; Milkwort, Pink; Mountain-mint, Hoary; Mulberry, Red; Orchid, Western Prairie Fringed; Owl-clover, Bearded; Paintbrush, Golden; Plantain, Heart-leaved; Pogonia, Large Whorled; Pogonia, Nodding; Pogonia, Small Whorled; Quillwort, Engelmann’s; Sanicle, Bear’s-foot; Sedge, False Hop; Sedge, Juniper; Spike-rush, Horsetail; Sundew, Thread-leaved; Thistle, Pitcher’s; Toothcup; Tree, Cucumber; Trillium, Drooping; Twayblade, Purple; Willow,Barrens; Wintergreen, Spotted; Wood-poppy; Woodsia, Blunt-lobed; Woolly-heads, Tall (Pacific population).

Lichens. Centipede, Seaside.

Mosses. Moss, Poor Pocket; Moss, Rigid Apple.

Mammals. Bat, Pallid; Bison, Wood; Caribou, Woodland (Boreal population); Caribou, Woodland (Southern Mountain population); Ermine; Otter, Sea; Shrew, Pacific Water; Whale, Killer (Northeast Pacific transient population); Whale, Killer (Northeast Pacific northern resident population).

Birds. Bittern, Least; Falcon, Peregrine; Goshawk, Northern; Gull, Ross’s; Murrelet, Marbled; Pipit, Sprague’s; Warbler, Hooded.

Amphibians. Salamander, Allegheny Mountain Dusky; Salamander, Jefferson; Salamander, Pacific Giant; Spadefoot, Great Basin; Toad, Fowler’s.

Reptiles. Gartersnake, Butler’s; Ratsnake, Black; Snake, Eastern Fox; Snake, Eastern Hog-nosed; Snake, Queen.

Fish. Chubsucker, Lake; Darter, Eastern Sand; Gar, Spotted; Lamprey, Cowichan Lake; Minnow, Western Silvery; Sculpin, Cultus Pygmy; Sculpin, Shorthead; Shiner, Rosyface (Manitoba population); Smelt, Lake Utopia Dwarf; Wolffish, Northern; Wolffish, Spotted.

Molluscs. Abalone, Northern.

Lepidopterans (Butterflies and Moths). Hairstreak, Behr’s; Skipper, Dun (Western population).

Plants. Aster, Anticosti; Aster, Western Silvery; Aster, White-top; Blue-flag, Western; Braya, Fernald’s; Buffalograss; Coffee-tree, Kentucky; Colicroot; Corydalis, Scouler’s; Crest, Golden; Deerberry; Gentian, Plymouth; Goldenseal; Greenbrier, Round-leaved (Great Lakes Plains population); Lily, Lyall’s Mariposa; Mosquito-fern, Mexican; Mouse-ear-cress, Slender; Orchid, Phantom; Prairie-clover, Hairy; Redroot; Sanicle, Purple; Soapweed; Spike-rush, Tubercled; Star, Dense Blazing; Violet, Yellow Montane; Water-pennywort; Water-willow, American.

Mosses Moss, Haller’s Apple.

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