Canada: Shifting Currents: Legal Protection Of Whales And Waterways

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.

In other news from the federal government relevant to regulation of the aquatic environment, the changes to the Navigable Waters Protection Act, which were discussed in our October 2012 Blakes Bulletin on Environmental Law – 2012 Budget Implementation: The Ebb and Flow of Navigable Waters, have finally come into force.

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 environmental assessments.

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 Act (NPA).

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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