1. THE SPECIES AT RISK ACT (SARA) CBA/Justice National Section Meeting National Environmental Energy Resources Law Group Ottawa – October 24, 2004

2. 2 Purpose of the presentation  To give a brief overview of the main features of the SARA, to the exclusion of enforcement measures, offences and punishment and alternative measures.

3. 3 SARA  Key tool for the conservation and protection of Canada’s biological diversity  Fulfils a key commitment under the United Nations Convention on Biological Diversity (signed in 1992)

4. 4 Coming into force  Related Amendments:  March 24, 2003 – ss. 1, 134-136, 138-141  Majority of the Act:  June 5, 2003 – ss. 2-31, 37-56, 62, 65-76, 78-84, 120-133, 137  Enforcement provisions and Prohibitions:  June 1, 2004 – ss. 32-36, 57-61, 63, 64, 77, 85-119

5. 5 Purpose of SARA  To prevent wildlife species from being extirpated or becoming extinct  To provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity  To manage species of special concern to prevent them from becoming endangered or threatened

6. 6 Scope of SARA  listed aquatic species and their critical habitat  listed migratory birds covered by the Migratory Birds Convention Act, 1994 and their critical habitat  other listed species and their critical habitat on  federal lands  provincial and territorial lands if “safety net” is used

7. 7 Ministerial Responsibility  Canadian Heritage  individuals in national parks, national historic sites, national marine conservation areas or other protected heritage areas.  Fisheries and Oceans  aquatic species other than individuals mentioned above.  Environment  all other individuals; also accountable for overall administration of the Act.

8. 8 Basic elements √Stewardship √ Science based species assessment by COSEWIC √Listing process √Protection measures √Public participation Enforcement measures Offences and punishment Alternative measures √Public registry

9. 9 Stewardship  Stewardship action plan  Conservation agreements with any government, organization or person for measures to:  protect species at risk and their critical habitats  develop and implement recovery strategies, action plans and management plans  conserve wildlife species not at risk, to prevent them from becoming “at risk” (s.11; 12)  Funding agreements to help cover costs of conservation actions (s. 13)

10. 10 Science-Based Species Assessment (1)  Gives COSEWIC legal basis  Independent, arm’s length expert  Composition  Functions  Uses the best available biological information Scientific knowledge Community knowledge Aboriginal traditional knowledge

11. 11 Science-Based Species Assessment (2)  Assessment must be based on status reports  COSEWIC must assess within 1 year after it receives a status report  Assessments and reasons provided to the Minister and CESCC and included in the public registry

12. 12 Listing Process (1)  Minister to indicate response in public registry within 90 days after receiving the assessment  Consultation requirements  GiC to make a decision within 9 months after receiving the assessment on the recommendation of the Minister of the Environment  accept the assessment and add the species to the List  decide not to add the species to the List  refer the matter back to COSEWIC for further information or consideration

13. 13 Listing Process (2)  Where the GiC has not made a decision within 9 months, the Minister must amend the List in accordance with COSEWIC’s assessment.  233 species on Schedule 1  17 extirpated species  105 endangered species  68 threatened species  43 species of special concern

14. 14 Emergency Listing (3)  If there is an imminent threat to the survival of a species  any person may apply to COSEWIC for an assessment of the threat, or  the Minister may make a recommendation to the GiC to List the species as an endangered species  As soon as possible after listing, COSEWIC must have a status report prepared

15. 15 Emergency Listing (4)  Within one year after listing, COSEWIC must  confirm the classification  recommend that the species be reclassified, or  recommend that the species be removed from the List  The Minister may make a recommendation to the GiC with respect to amending the List.

16. 16 Protection Measures  General Prohibitions  Mandatory Recovery Planning  Protection of Critical Habitat  Agreements and Permits  Project Review  Emergency Orders  Exceptions

17. 17 General Prohibitions (1) As of June 1, 2004:  Automatic prohibitions against  killing, harming, capturing, possessing, buying, selling, etc. individuals of a wildlife species listed as extirpated, endangered or threatened (s.32)  damaging or destroying the residence of individuals of a wildlife species listed as: – endangered or threatened – extirpated if a recovery strategy has recommended the re-introduction of the species into the wild in Canada (s. 33)

18. 18 General Prohibitions (2)  Provinces and territories given first opportunity to protect listed species other than aquatic species or migratory birds on provincial lands (s. 34(1); 35(1))  If the Minister is of the opinion that the species are not effectively protected, safety net approach means that federal prohibitions may be applied by GiC order (s. 34(2); 35(3))  Consultation of appropriate provincial/territorial minister and wildlife management board necessary

19. 19 General Prohibitions (3)  Federal prohibitions may be made applicable by GiC order  on portions of federal lands specified in the order  to species that are classified as endangered or threatened by a provincial or territorial minister (s. 36)

20. 20 Mandatory Recovery Planning (1)  Mandatory recovery strategies and action plans for endangered, threatened and extirpated species (s. 41 - 45)  Mandatory management plans for species of special concern (s. 65 - 72)  Guiding principles  Inclusive process of development of plans (co-operation with other orders of government, wildlife management boards, aboriginal organizations, consultation with landowners, etc.  Determination of feasibility  Mandatory content  Mandatory timelines  Ministerial reporting on implementation every five years

21. 21 Recovery Strategies (2) Mandatory content includes:  Identification of the threats to the survival of the species and to its habitat  Broad strategy to address those threats  Identification of the species’ critical habitat, to the extent possible  Population and distribution objectives  Timelines for the preparation of action plan(s)

22. 22 Recovery Strategies (3) Mandatory timelines :  for species on the List on June 5, 2003 : 3 years for endangered species 4 years for threatened or extirpated species  for species added to the List after June 5, 2003 : 1 year for endangered species 2 years for threatened or extirpated species

23. 23 Action Plans (4) Mandatory content includes :  Identification of the species’ critical habitat, to the extent possible  Activities that would destroy the species’ critical habitat  Measures to protect the species’ critical habitat  Identification of unprotected portions of critical habitat  Measures to implement the recovery strategy  Methods to monitor the recovery of the species and its long-term viability  An evaluation of the socio-economic costs of the action plan and the benefits of its implementation

24. 24 Management Plans (5) Mandatory content:  measures for the conservation of species of special concern and their habitat Timeline:  5 years for species on the List on June 5, 2003  3 years for species added to the List after June 5, 2003

25. 25 Protection of Critical Habitat Within 180 days of its identification in a finalized recovery strategy or action plan, critical habitat must be protected through:  stewardship agreements,  under another Act of Parliament, or  the application of s. 58(1)

26. 26 Agreements and Permits (1) Agreements and permits may allow a person to engage in an activity that would otherwise be a SARA offence if:  the activity is scientific research relating to the conservation of the species and conducted by qualified persons  the activity benefits the species or enhances its chances of survival in the wild, or  affecting the species is incidental the carrying out of the activity.

27. 27 Agreements and Permits (2) The competent minister must be of the opinion that:  all reasonable alternatives have been considered and the best solution has been adopted;  all feasible measures will be taken to minimize the impact of the activity on the species; and  the activity will not jeopardize the survival or recovery of the species.

28. 28 Exemptions (3) GiC may make an order providing that the prohibitions do not apply:  for a period of up to one year from the date of listing  to agreements, permits, licences or similar documents that authorize a person to engage in an activity that affects the listed species/critical habitat/residence were entered into/issued under another Act of Parliament before the species was listed

29. 29 Project Review The responsible authority must, if a project is likely to affect a listed species or its critical habitat:  notify the competent minister in writing of the project  identify the adverse effects on the species and its critical habitat  if the project is carried out, ensure that measures consistent with any applicable recovery strategy and action plan are taken to avoid or lessen the adverse effects to monitor the adverse effects

30. 30 Emergency Orders May be made where the competent minister believes that a listed species is facing imminent threats to its survival or recovery. Those GiC orders may  identify habitat necessary for the survival or recovery of the species  require protection measures  prohibit activities that may adversely affect the species and habitat

31. 31 Exceptions (s. 83)  Many exceptions – e.g. public safety, health and national security  Most common likely to be:  activities authorized by permits and agreements issued under s. 73, 74 and 78 of the Act  activities engaged in accordance with conservation measures under a land claims agreement (ss. 83(3))  activities allowed by a recovery strategy, action plan or management plan and authorized under an Act of Parliament (including regulations made under s. 53, 59 or 71) (ss 83(4))  possession of an individual of a listed EX, EN or TH species in the circumstances set out in ss. 83 (5)

32. 32 Public participation Anyone has a right to:  apply to COSEWIC for an assessment of the status of a species the threat (for the purpose of having the species listed as endangered on an emergency basis)  comment on proposed recovery strategies, action plans and management plans prior to their approval (within 60 days after their inclusion in the public registry)  apply for an investigation into an alleged offence under the Act (s. 93)

33. 33 Public registry Public registry established : www.sararegistry.gc.ca / www.registrelep.gc.ca Will include :  SARA regulations and orders  agreements under section 10  COSEWIC’s classification criteria  status reports  the List of Wildlife Species at Risk  recovery strategies, action plans and management plans  annual reports on the administration of SARA