The federal government recently released a proposal to
acknowledge the improved status of the northern Pacific population
of the humpback whale through downlisting of its legal status under
the Species at Risk Act (SARA). The proposal has
spotlighted the potential implications of changes in legal status
of endangered species for resource operations and provides a
specific example of why being aware of such proposals is important
to future operational planning.
POTENTIAL CHANGES TO THE STATUS OF THE HUMPBACK WHALE
On April 10, 2014, the federal Minister of Environment
recommended that the legal status of the humpback whale under SARA
be changed by the federal cabinet from "threatened" to
"of special concern." This recommendation was made after
a three-year process that included a reassessment of the
species' status by COSEWIC (Canada's independent science
committee), a robust public communication and consultation process
and a 2013 decision by the federal cabinet not to change the
species legal status without a reconsideration by COSEWIC. In late
2013, the reconsideration was completed, and COSEWIC confirmed that
the species is no longer threatened. The public has 30 days to
provide comments to the cabinet, and the cabinet has nine months to
decide whether to accept the recommendation, which will not
necessarily occur as there have been a number of instances since
SARA came into force in which ministers' recommendations have
not been adopted by the cabinet.
The downlisting of a species under SARA relying on a
science-based assessment that there has been an improvement to the
level of endangerment of a species is generally good news for the
Canadian environment, as it demonstrates the success of
Canada's strategy regarding whales over the past decades.
From a regulatory perspective, the change to the risk level of a
species may have a number of implications, including adding or
removing requirements for recovery planning and specific protection
of the species or its habitat under SARA. In turn, this may add or
remove the need for approvals under SARA for activities potentially
impacting a species. However, as long as a species remains on
SARA's legal list, whatever the status category, there will
still be a requirement for special consideration and mitigation of
potential impacts to the species and its habitat under federal
In the case of downlisting of an aquatic species or migratory
bird from a status of endangered or threatened to "of special
concern," as may occur with this subspecies of humpback whale,
there are still protections under other federal statutes such as
the Fisheries Act and the Migratory Birds Convention
Act, and consequent requirements to mitigate impacts and,
depending upon activities, obtain approvals. In our experience, the
current and past status of a species will be a primary
consideration for the government in issuing such approvals.
For resource-based industries, being aware of the current status
of species potentially impacted by existing or proposed operations,
as well as keeping apprised of likely future changes in such
status, is critical to understanding the legal implications to
businesses under both SARA and provincial endangered species laws,
many of which adopt the federal listings. Fortunately, a great deal
of information is publicly available regarding the government's
future plans for listings, as can be demonstrated by what has
occurred with the humpback whale.
NAVIGATION PROTECTION ACT NOW IN FORCE
On April 1, 2014, the majority of the amendments to the
Navigable Waters Protection Act, which were part of
omnibus Bill C-45 in 2012, came into force. Of particular note is
that the name of the act is now the Navigation Protection
One of the most significant aspects of the newly constituted NPA
relates to its prohibitions and associated provisions for approvals
of construction of work associated with navigable waters. While the
prohibitions and approval requirements still exist, they now only
apply to the navigable waters that are listed in the schedule to
the NPA, which only lists significant bodies of water. For bodies
of water not listed in the schedule, while other provisions of the
NPA will still apply, there is no longer a requirement to obtain an
approval under the NPA.
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