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On July 18, 2026, Environment and Climate Change Canada (“ECCC”) published a Notice of Intent to develop a new regulation under the Species at Risk Act (“SARA”) for the protection of the critical habitat of certain threatened, endangered, or extirpated terrestrial species on applicable federal lands. The comment period for the proposal closes on September 16, 2026.
This proposal follows a series of legislative reforms to the conservation framework in Ontario, reflecting a broader trend of regulatory modernization in the species-at-risk space across Canadian jurisdictions. Further discussion of the changes to Ontario’s provincial watershed management regime, conservation authority consolidation, and new Species Conservation Act may be found in our previous bulletins. This bulletin provides an overview of the current framework for critical habitat protection under SARA, the proposed regulation, and its potential implications.
Existing Framework for Critical Habitat Protection Under SARA
The purpose of SARA is to prevent the extirpation or extinction of wildlife species; to provide for the recovery of species that are extirpated, endangered, or threatened as a result of human activity; and to manage species of special concern so as to prevent them from becoming endangered or threatened.1 Species that are extirpated, endangered, or threatened are listed on Schedule 1 of SARA.2 It is prohibited to kill, harass, harm, capture, take, possess, collect, buy, trade, or sell individuals of any species listed on Schedule 1, or to damage or destroy the residence of such species (such as a den or nest).3 For certain species, including aquatic species and certain migratory birds, these prohibitions apply wherever the species are found in Canada. For other terrestrial species, the prohibitions apply only on federal and certain territorial lands.4
Upon the listing of a species on Schedule 1, the competent minister is required to develop a recovery strategy setting out measures to halt or reverse the decline of the species, together with an action plan establishing the means by which the objectives of the recovery strategy are to be achieved.5 The recovery strategy or action plan must identify, to the extent possible, the habitat necessary for the survival or recovery of the species (the “critical habitat”).6 Once the critical habitat has been identified, the final recovery strategies and action plans are published by the competent minister on the Species at Risk Public Registry, and the critical habitat must be protected within 180 days of its identification.7
Critical habitat on federal lands may be protected under SARA by means of a critical habitat protection order (“CHPO”). CHPOs are “developed on a species-by-species basis and trigger a prohibition against the destruction of any part of the critical habitat identified in a final published recovery strategy or action plan”8 for the species in question. ECCC has indicated that the current species-by-species CHPO approach is both costly and time-consuming.9 In furtherance of the federal government’s 2025 Red Tape Review, a directive calling upon all federal departments to undertake regulatory reviews aimed at improving efficiency, and consistent with ECCC’s Red Tape Reduction Plan and Progress Report, ECCC proposes to develop the Critical Habitat Protection Regulations (the “Regulations”). The Regulations are intended to enhance the efficiency of critical habitat protection for terrestrial species on federal lands while continuing to satisfy the federal government’s statutory obligations under SARA.10
Critical Habitat Protection Under the Proposed Regulations
The proposed Regulations would establish a streamlined mechanism for the protection of the critical habitat of threatened, endangered, or extirpated terrestrial species listed on Schedule 1 of SARA on applicable federal lands. Under the current framework, CHPOs are implemented on a species-by-species basis. By contrast, under the proposed Regulations, prohibitions against the destruction of critical habitat on federal lands would be triggered automatically 180 days after the critical habitat is identified in a final posted recovery strategy or action plan.11 This approach is expected to reduce regulatory burden by replacing the need for numerous individual CHPOs with a single regulation. Terrestrial species whose critical habitat has been identified in existing recovery strategies or action plans would be transitioned to the proposed Regulations’ scheme 30 days after notice of the transfer is published in the Canada Gazette.12
The proposed Regulations would generally apply to federal lands (as defined in SARA), including some land administered by Parks Canada. However, the Regulations would not apply to the critical habitat of aquatic species, any non-federal lands, or any First Nations reserve lands or lands under the administration of the commissioners of Yukon, Northwest Territories, and Nunavut (i.e., devolved lands – lands for which the corresponding responsibilities and powers have been transferred to the territory).13 Alternative protection strategies would be developed in consultation with Indigenous partners and territorial governments for critical habitats on First Nation reserve lands and devolved lands.14
It bears noting that, while the application of SARA is a matter of federal jurisdiction, provincial conservation and endangered species regimes continue to operate concurrently. Where both federal and provincial regimes regulate the same species or habitats, compliance with both frameworks is required of landowners, operators, developers, and other affected parties. In the exceptional circumstance where compliance with both governing regimes presents a conflict, it is advisable to seek the guidance of environmental legal counsel with respect to the specific obligations applicable in such circumstances.
Looking Ahead
ECCC has indicated that the proposed Regulations are intended to streamline the manner in which it fulfills its statutory obligation under SARA to protect the critical habitat of terrestrial species on federal lands, to support the survival and recovery of covered terrestrial species, to centralize the protection of critical habitats, and to reduce regulatory burden.15 The extent to which the Regulations achieve these stated objectives upon enactment remains to be seen. The proposal is presently open for public comment, with the comment period closing on September 16, 2026. According to ECCC, comments received will inform the drafting of the proposed Regulations.
McMillan will continue to monitor developments in endangered species regulation across Canada. Should you have any questions regarding this proposal, or any other conservation-related regulatory changes and how they may affect your business, please do not hesitate to contact the authors of this bulletin.
Footnotes
1 Environment and Climate Change Canada, “About the Species at Risk Act” (modified 10 September 2017).
2 Environment and Climate Change Canada, “Discussion Paper Proposed Critical Habitat Protection Regulations for Federal Lands Made Under Section 59 of the Species at Risk Act” (2026) at p 3 [Discussion Paper].
3 Ibid at pp 3 to 4.
4 Ibid at pp 4.
5 Notice of intent – Consultation by Environment and Climate Change Canada on a proposal to develop a new regulation for the protection of critical habitat on applicable federal lands, (Department of the Environment) (2026), C Gaz I, (vol 160 no 29) [Notice]; Environment and Climate Change Canada, “Species at Risk Act: recovery strategies” (modified 09 December 2024); Environment and Climate Change Canada, “Species at Risk Act: action plans” (modified 09 December 2024).
6 Discussion Paper, supra note 2 at p 4.
7 Notice, supra note 5; Discussion Paper, supra note 2 at p 4.
8 Discussion Paper, supra note 2 at p 4.
9 Ibid.
10 Notice, supra note 5.
11 Discussion Paper at p 5; Notice, supra note 5.
12 Discussion Paper, supra note 2 at p 6.
13 Notice, supra note 5.
14 Ibid.
15 Discussion Paper, supra note 2 at pp 4 to 5.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
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