Canada has historically taken an approach to species conservation that is quite different from the United States. The U.S. model has a federal Endangered Species Act, which is the strongest species protection legislation, usually superseding state laws. In Canada, however, provinces and territories have worked independently of and in cooperation with the federal government to protect and recover many of Canada's species at risk. All jurisdictions provide varying levels of protection to species at risk through bits and pieces of wildlife legislation. Currently four of Canada's provinces - Manitoba, Ontario, Quebec and New Brunswick - have endangered species laws in place. Newfoundland, Saskatchewan and the Northwest Territories are currently developing legislation; Nova Scotia recently introduced a Bill for an ESA in provincial Parliament.
Endangered species protection across Canada is thus a little like a patchwork quilt, with some pieces thinner than others. Unfortunately, the network of provincial laws and voluntary measures has proven insufficient to deal with growing threats to species. Canada's national list of species at risk has tripled over the past 10 years, with the 1996 list showing 255 species and populations as nationally endangered, threatened and vulnerable, and an additional 11 extirpated and 10 extinct. The need for a federal endangered species act has long been recognized by the Canadian public, with polls showing that 94% of Canadians support federal legislation.
The federal government also appeared to recognize this need almost five years ago when Canada was one of the first nations to sign the UN Convention on Biological Diversity, which commits signatories to developing legislative protection for threatened species. Only recently, however, after years of lobbying and consultations with the public, resource industries, environmental groups, and Canada's provincial and territorial governments, did the federal government take further action; the Canada Endangered Species Protection Act (CESPA), Bill C-65, was introduced into the House of Commons on October 31, 1996.
As of mid-April , Bill C-65 is stalled in Canadian Parliament and its future is unclear. As written, the CESPA is extremely weak and reflects the existing division of powers over wildlife management in Canada, with the strongest provisions applying only to a very small percentage of Canada's land area and species. Consequently, few conservation groups want to see it passed in its current form. The following description refers to the current Bill, as amended by the Standing Committee following public hearings, with discussion on how proposed government amendments would alter it.
What the Act will do
Definitions
The Canada Endangered Species Protection Act (CESPA) makes it illegal to kill, harm, harass or take a listed, extirpated, endangered, or threatened species or to destroy or damage its residence. "Species" currently refers to sub-species and geographically or genetically distinct populations, but a government amendment will remove genetically distinct populations. "Residence" is currently defined as a specific dwelling site such as a den, nest or other area occupied or habitually occupied by an individual or population during part of its life cycle, including breeding, rearing and hibernating. A government amendment, however, will delete the reference to populations, making the definition ambiguous (e.g., a calving ground is clearly occupied by a population of caribou, but only portions of it are habitually occupied by an individual).
Permitting
The CESPA includes a permitting process to exempt activities that may incidentally harm a listed species or its residence, but requires that alternatives be considered and all feasible mitigating measures be undertaken. Permits are publicly registered and may only be granted for activities that will not imperil the survival or recovery of a species. The CESPA also includes a blanket exemption from assessment, mitigation, and monitoring requirements for activities undertaken for national security, safety, and health, including plant and animal health (e.g., agriculture). Activities in accordance with regulatory measures under aboriginal and land claims agreements are also exempted. The former blanket exemption is potentially a large weakness in the CESPA, as it suggests that activities such as low-level military flights and pesticide use would be pre-approved.
Listing
Listing of species at risk will be decided by federal Cabinet, based on the advice of the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), a scientific committee which has been operating for 20 years. COSEWIC will prepare species status reports and will designate them as "endangered," "threatened," "vulnerable," or "not at risk." Cabinet's decisions are to be based on COSEWIC information, but the CESPA does not require that the scientific designations be adopted, nor does it require any form of justification for listing decisions that diverge from COSEWIC designations. Excessive political discretion in the listing process undermines the credibility of the CESPA and has plagued each of the four existing provincial endangered species acts in Canada. For example, the Quebec act is quite strong but lists only nine species, all plants, thus offering no protection to any of the province's endangered animal populations.
Recovery and management plans
The CESPA requires that recovery plans be developed within one year of listing for endangered species and within two years of listing for threatened and extirpated species. Management plans must be developed for vulnerable species within three years of listing. Recovery plans are well defined to include a description of the species, its critical habitat, threats to both, and an outline of measures to recover the species with a cost/benefit analysis of each. Management plans are less well defined; current language states only that measures for species conservation considered necessary by the responsible minister be included. Recovery and management plans are to be prepared with stakeholder involvement, including inter-jurisdictional cooperation where possible, and are subject to a 30 day public comment period. One hundred twenty days after the comment period, the federal minister is obliged to promulgate regulations needed to implement measures in a recovery plan, including regulations or prohibitions on activities that impact a species' critical habitat.
Although the CESPA protects species' "residences," it does not include an automatic prohibition against destruction of critical habitat. Habitat protection must instead be achieved through Recovery Plans. The CESPA also includes a provision for emergency orders to be issued to protect species and their critical habitats, upon the emergency designation or reclassification of a species by COSEWIC in the case of an imminent threat to a species.
Weakness of the Act
On the surface CESPA appears, despite some weaknesses, to be a good start towards species protection. The Act's main weakness, however, is that it does not apply throughout Canada. In Canada's ten provinces the CESPA's prohibitions, emergency orders and regulations under recovery plans will apply only on federal lands and waters, with two exceptions discussed below. Federal lands, which include national parks, military bases, native reserves, and crown corporations, comprise only 4% of the provincial land base. Only in the Yukon and Northwest Territories will the CESPA apply on all lands.
Even the CESPA's larger jurisdiction in the territories is somewhat undermined because the prohibition against harm to individuals of listed species will not apply to game species at risk such as polar bears (Ursus maritimus) and Peary caribou (Rangifer tarandus pearyi); protection of residences and habitats will, however, be provided. Should the territories inadequately enforce protective measures for game species at risk, the CESPA allows the federal government to enforce federal regulations in the future.
The only species which may receive habitat protection throughout their entire range under the CESPA are aquatic and marine species. In keeping with established federal powers under The Fisheries Act, the CESPA currently applies to aquatic species and their habitats throughout Canada. This application, however, caused substantial conflict with east coast fishing industry representatives and provincial governments, and, because of the conflict, a new government amendment specifically exempts the "unforeseen" incidental by-catch of listed species (e.g., a leatherback sea turtle (Dermochelys coriacea) or marbled murrelet (Brachyramphus marmoratus) caught in a fishing net). The exemption does not include any requirement to monitor or register such by-catch, nor does it include any incentive to avoid such by-catch through better gear technology. Therefore, despite full application of the CESPA to their habitats, aquatic and marine species will still face threats.
The exceptions to the limited application of CESPA in the provinces are for bird species listed under the Migratory Birds Convention Act (MBCA), and for other international animal species. In both of these cases the animals' residences will be protected, but habitat is not protected outside of federal lands.
The protection of international animal species comes under CESPA's contentious Section 33. The original language stated that the federal government could make future regulations to protect internationally ranging or migrating animal species and their residences wherever they are found. The Standing Committee made such regulations a requirement, also adding a provision to waive the federal regulations in a province which enforces equivalent regulations to protect international species. This new provision is based on the criminal code powers of the federal government regulating cruelty to animals; it therefore does not extend to plant species with an international distribution. For example, Furbish's Lousewort (Pedicularis fubishiae), endangered in both New Brunswick and Maine, will receive no protection under CESPA outside of federal lands.
Section 33, which is virtually the only part of CESPA that will affect provincial and private lands, has evoked a clear and unanimous negative response from Canada's provincial governments and most resource-based industries. All provinces find it an intrusion into their jurisdiction, despite the inclusion of a waiver in the case of equivalent provincial legislation. A British Columbia forestry sector spokesperson has suggested that the CESPA will collapse the western timber industry and shatter resource-based communities. The Canadian Cattlemen's Association wants Section 33 deleted and has advised landowners to stop voluntary efforts to protect endangered species if the CESPA is passed as is.
Despite the uproar, Section 33 is very weak because it does not allow for species' habitat protection. Outside of federal lands, recovery regulations and emergency orders - through which habitat protection can be provided - apply only to individuals and residences. A recovery regulation to protect a critical staging area on provincial or private lands cannot be implemented under the CESPA, regardless of whether the animal has an international range. A province may implement habitat protective measures in cooperation, of course, but a province may also choose not to.
Specific examples
Animals found on federal lands
The endangered Aurora trout (Balaena mysticetus) currently suffers from lake acidification in northern Ontario. Under the CESPA, the animals and their residences would be automatically protected throughout their range. Habitat protection measures would likely be implemented through recovery plans, and the species and its habitat would also be eligible for emergency protection if required. Being found only in areas of federal jurisdiction, the CESPA would provide the Aurora trout with the full extent of protection available.
Animals not found on federal lands
The passage of CESPA will change virtually nothing for two of Canada's most critically endangered animals, the Vancouver Island marmot (Marmota vancouverensis) and the Newfoundland marten (a population of Martes americana). The Vancouver Island marmot is an endemic Canadian species with only 300-350 surviving individuals, all in colonies on private and provincial lands threatened by recreational developments. The Newfoundland marten is a population of the American marten, which has been isolated on the island of Newfoundland for about 10,000 years. The remaining population of about 250 individuals are provincially protected from direct killing, but live in old growth forests which are currently being logged. Only 25 martens, which were recently moved into Terra Nova National Park, will be protected by the CESPA.
Animals that range between the U.S. and Canada
For animal species shared by the U.S. and Canada, protection under CESPA will vary from species to species. For example, Canadian protection of grizzly bears (Ursus arctos horribilis) will depend on what is included in a management plan for the species. Because they are designated as a vulnerable species, grizzlies will not be protected anywhere in Canada through automatic prohibitions (indeed, currently they are legally hunted). The species would have to wait three years after official listing for the preparation of a management plan and then await its implementation. If the plan recommends habitat protection measures, the Government of Canada will not be able to implement that protection outside of federal lands. Provincial cooperation must be sought but is in no way guaranteed.
For non-migrating internationally ranging species such as the eastern cougar (Felis concolor couguar; if any remain) or the northern spotted owl (Strix occidentalis caurina), protection would depend in part on whether the Canadian populations are listed as geographically distinct from the American populations. For example, if the eastern cougar is identified as part of an international population, then the CESPA will make it illegal to kill or harm an individual or destroy its residence anywhere in Canada. Also, the development and implementation of a recovery plan, in cooperation with provincial and U.S. governments if possible, would be required within 16 months of listing. Of course, any habitat protection regulations recommended in the recovery plan could only be implemented on federal lands, which would be virtually meaningless in this case because eastern cougars do not roam on federal lands in Canada. A provincial government could agree to implement recovery plans outside of federal lands, but no law obliges it to do so.
Alternatively, if the Canadian population of eastern cougar were identified as geographically distinct, then the CESPA would provide even less protection to the species. A recovery plan would be developed but on-the-ground protection would not be guaranteed in Canada, as the animals range only on non-federal lands. Not only would the cougars not have their habitat protected but, if not classed as an international population, they would not even have their dens or skins protected by the federal law.
Conclusion
Just prior to the October 1996 introduction of the CESPA, the federal Environment Minister announced that a preliminary agreement had been reached, among all ministers responsible for wildlife in Canada's provinces and territories, on a National Accord for the Protection of Species at Risk. The Accord commits all jurisdictions to developing complementary legislation that provides immediate protection to endangered and threatened species and to protection of their habitats. Some weaknesses of the CESPA can be explained by the anticipated development of cross-country endangered species legislation as promised in the Accord.
The Accord, however, does not specify that provincial laws have to be equivalent to the federal law, but merely complementary. With a weak federal law as a role model, the provinces are under little pressure to develop truly effective legislation, and the worth of the Accord shrinks accordingly. Also, after seven months, only six of Canada's 12 provinces and territories have even signed the Accord.
Canada and the U.S. share many species, including many species at risk. Cooperation between the two countries in species recovery has a long history and has helped keep species like the whooping crane (Grus americana) from extinction. International cooperation has also helped recover extirpated species in one nation by reintroducing individuals from the other - for example, sea otters (Enhydra lutris) in British Columbia and gray wolves (Canis lupus) in Yellowstone National Park. There remain numerous examples of species listed as endangered or extirpated in one country but not in the other (e.g., bald eagle (Haliaeetus leucocephalus) in the U.S., greater prairie chicken (Tympanuchus cupido pinnatus) in Canada). How recovery of such species will be coordinated remains to be seen, but it is likely that the stress on voluntary cooperation from all affected jurisdictions will remain. Canadian participation in international efforts toward species recovery will certainly continue to depend on the moods of affected provinces, for the CESPA in itself cannot guarantee nation-wide cooperation.
Catherine Austen is the coordinator of the Canadian Endangered Species Coalition. The Coalition was formed in 1994 by six of Canada's most influential environmental non-governmental organizations, and has over 100 supporting groups across Canada who share the goal of strong nationwide endangered species legislation.
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