Canada: First Emergency Order Under SARA Restricts Resource-Based Activities On Provincial Land

The Governor in Council (the federal cabinet) recently made an emergency order under the Species at Risk Act (SARA) for protection of the critical habitat of the Greater Sage-Grouse in southern Alberta and Saskatchewan. The effect of the order is to place limits on industrial and agricultural activities on provincial Crown land which are both permitted and currently exercised under provincial laws. It also confirms that the federal government is prepared to apply the protections for species at risk under SARA to provincial land. While this order does not do so, this power can also be used to protect species and habitat on private land, and could well be used for other species which have a much larger range, with significant impacts on both public and private interests.

BACKGROUND

Protection of the critical habitat of endangered or threatened species is not automatic under SARA unless the habitat is located on specific types of federal land, such as national parks. There are, however, powers granted to the federal government under SARA to protect critical habitat with variations in the mechanisms for doing so depending on the type of species involved. For non-aquatic species which are located on provincial Crown land, private land, or aboriginal reserves, orders to protect habitat can only be made by the federal cabinet. This is sometimes referred to as SARA's federal safety net.

Section 80 of SARA empowers the federal cabinet to make an emergency order to protect species or their critical habitat on any land in Canada, in circumstances where the responsible federal minister is of the view that there is an imminent threat to the survival or recovery of the species.

In recent years, there has been a sharp decline in the number of Greater Sage-Grouse in Canada, and recovery strategies developed under SARA have identified areas and features in Alberta and Saskatchewan as critical habitat for the species. While both Saskatchewan and Alberta provide for protection of this species under their wildlife legislation, they do not specifically protect its habitat.

Several years ago, a petition was filed by a number of environmental non-governmental organizations asking for expansion of the critical habitat of the Greater-Sage Grouse and an emergency order to protect it. While the government's lack of response to that petition is the subject of an ongoing judicial review, to some extent this order responds to it.

THE ORDER

The order applies to 1,276 sq. km of provincial Crown land, as well as 356 sq. km of federally protected land, which includes land leased by the federal government from the provinces. Private land is not covered by the order, although the regulatory impact analysis statement (RIAS) accompanying the order states that the government encourages and supports stewardship actions on private land.

The order sets out specific activities that are prohibited in the areas to which it applies. These include killing or moving specific plant species; installing fences; installing or constructing structures or machines that produce noise in excess of 45 dB(A); constructing new roads or reconstructing existing ones; and installing structures, other than fences, greater than 1.2 metres in height. Failure to comply with the prohibitions is an offence under SARA. There are exemptions for certain activities, such as fences to manage grazing animals, provided they conform to a standard that is set out in the order. There are also exemptions for residential and other agricultural buildings.

According to the RIAS, there are four active oil wells that will be affected by seasonal noise prohibitions under the order. There are also a number of gas wells in the area, however their operation is not expected to be affected. More significantly, the order will likely result in a halt to the development of new wells, several of which are apparently already planned in the areas in which the order applies. The cost-benefit analysis in the RIAS predicts the costs of reduced production from new oil wells to be approximately C$10-million. Grazing operations and local residents are not expected to be significantly affected, although there are some identified incremental minimal costs on agriculture in relation to fencing, especially for bison.

SIGNIFICANCE

Although the impact of the emergency order for industrial operations is limited primarily to the development of new oil wells, the significance of the emergency order cannot be understated. While s. 80 of SARA provides the power to the federal government to impose prohibitions on activities that are traditionally under provincial jurisdiction, in this case agriculture and oil and gas development, those powers have not previously been exercised. In this respect, this order demonstrates that the federal government is prepared to use the powers Parliament granted it 10 years ago under SARA to place further limits on provincially regulated activities for the purpose of protecting and recovering endangered species. These powers have the potential to be used to restrict or prohibit a wide range of land-based activities affecting species at risk. For some species, such as boreal caribou, the impact of the exercise of such powers could be very significant indeed.

The constitutional validity of SARA's safety net provisions have not yet been tested by the courts. It is unclear at this stage how Alberta or Saskatchewan will react to the order as there was no consultation with either province before the order was made. As a consequence, it is also unclear whether the order will lead to a judicial challenge to SARA, or whether that fight will be left to another more far-reaching order.

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