Closing the gaps in protection for species at risk

Those following federal policy may have heard conversations about the need to evaluate and potentially modernize the Species at Risk Act (SARA) to make it more effective, as directed by the prime minister in mandate letters to the minister of environment and climate change.

Loss of critical habitat – the habitat that species need to survive and recover – is a key driver of species’ decline. To be deemed effective, we believe the implementation of SARA must result in a reduction in critical habitat loss. While no clear tracking system exists to assess how well SARA has actually prevented the destruction of critical habitat, what is clear is there are many gaps in protection, even when the act is being applied. We wanted to understand why and to think about where improvements could be made.

The act has very strong language about critical habitat, stating that “no person shall destroy” any part “identified for a threatened or endangered species.” Through legal rulings, the definition of what constitutes the destruction of critical habitat is quite robust.

However, the implementation of that directive is much more complex.

First, SARA applies directly to federal lands (such as national parks and Defence Department lands), fresh water and marine areas. In all other places, the federal government can intervene only if the minister is of the opinion that a province or territory is not effectively protecting habitat, or that a species faces imminent risk. Habitat protection can happen in three ways:

1. Through federal intervention in provinces/territories, such as emergency orders.

2. Within federal jurisdiction:

a. If the critical habitat is found in a national park, marine protected area, migratory bird sanctuary or a national wildlife area, it needs to be flagged under the related acts and protected under that legislation.

b. If the critical habitat has been identified and a species is on federal land, in the exclusive economic zone or continental shelf of Canada, an aquatic species, or a migratory bird habitat should be protected by a critical habitat order (CHO), unless the above applies.

3. In the case of provinces and territories, if critical habitat for a species is on lands under their jurisdiction, then their tools apply. However, the federal government has a responsibility to track actions that are taken.

Second, SARA’s implementation has been diluted. For example, it is considered under the Impact Assessment Act and the Fisheries Act at the federal level or in provincial and territorial laws, such as forest management regulations. But often species’ needs are ignored. Also, SARA does not require governments to undertake proactive steps to address the threats identified in the recovery strategies, the documents that define the required recovery actions for a species. This has meant a more reactive response.

Examples regarding how this results in gaps in protection are not hard to find. For instance, the federal government stepped in to address threats to critical habitat in areas of provincial jurisdiction for two species: the greater sage-grouse and the western chorus frog. This is despite five assessments that found imminent threats to species’ survival or recovery and federal reviews of the status of critical habitat protection in provinces and territories that revealed significant shortcomings. Another example where protection actions have not been taken is for boreal caribou, despite a 2017 review of boreal caribou recovery that concluded that there was continued habitat destruction across the country, and that caribou continued to decline. Both levels of government are failing to step forward.

An assessment done by World Wildlife Fund Canada found that 84 per cent of physical habitats with high concentrations of at-risk species are inadequately or not protected. According to our research, within federal jurisdiction, there are approximately 147 species with some critical habitat identified, but only 93 species with a portion of critical habitat protected in a national park or other national protected area tool. Meanwhile, though the Canada National Parks Act requires that national parks be managed for ecological integrity as a first priority, in several cases, such as in the Jasper National Park, conservation organizations have expressed concerns that decision-making in relation to SARA-listed species and their critical habitat has not sufficiently focused on species’ protection and recovery.

On the aquatic and marine side, according to our research, critical habitat orders have been completed for more than 90 per cent of species for which critical habitat has been identified. But the track record of actions taken to stop threats under these orders is weak. The orders merely point to existing laws or regulations but fail to detail how those laws need to be applied to improve the status of the listed species. Nor do they outline new measures that would address threats not fully covered by existing legislation.

On the provincial and territorial side success has been spotty, with some governments weakening species-at-risk legislation rather than implementing it and frequent missed deadlines for federal directives.

Taking a step back

We recognize that even if there were significant areas where threats to critical habitat had been halted, an evaluation of improvements in the species’ well-being is complex. Impacts are diffuse and significant data gaps exist in wildlife population tracking in Canada.

Our research led us to take a step back to assess whether species at risk in Canada are faring better or poorer overall since the act was introduced.

The answer is certainly the latter.

While in some instances the act has yet to be fully implemented due to slow policy rollout, it has made some positive differences for species. We have heard about instances where its direct use constrained industry expansion in critical habitat, where land-management practices were changed when threats were identified and where new recovery efforts were initiated.

As well, less direct measures have flowed from SARA that may yet lead to recovery actions in provinces and territories. These include the identification of critical habitat in federally mandated recovery strategies, which can guide recovery efforts. Governments can take their cue from federal assessments when listing species. Finally, actions of the provinces and territories are driven by both the carrot of funding and the stick of a federal intervention. Funding that has flowed from SARA programs has helped to fuel local conservation and restoration efforts throughout the country.

Too tall an ask?

Still, despite the thousands of federal staff hours spent on implementing SARA, we have repeatedly seen examples where no actions were taken to stop threats to critical habitat, or actions were taken only after significant intervention and lawsuits by conservationists, even in areas where the federal government has jurisdiction.

Some have suggested that to be more effective, SARA needs to change. But is too much weight being placed on SARA’s shoulders? Threats to wildlife habitat arise at every minute. Stopping them requires significant efforts and resources from many actors. Under SARA, the responsible minister can make a recommendation, but the federal cabinet must agree. Likewise, a staff person representing SARA at the Department of Fisheries and Oceans must convince those working on fisheries that change is needed. The list of people that need to be included is long.

How do we turn things around and make protecting species a more proactive agenda across Canada? Our research of the gaps leads to a few steps beyond focusing on SARA.

First, informed by the recovery strategies, we must systematically adjust our federal and provincial and territorial laws and policies to limit our impacts on lands and waters, especially where we know there are critical habitat and species at risk.

Second, part of a proactive approach means meeting and surpassing our protected areas targets in places that matter for species at risk as well as species more broadly.

Third, we must make sure that where SARA is linked to other processes, the law against critical habitat destruction is upheld. Environmental assessments must not allow or significantly modify, projects that would negatively impact critical habitat and we must find ways to diversify Canada’s economy to prioritize jobs that help species, not harm them. Society must accept that if we are to have wildlife in the future, we need to learn to share land and water. Only in this landscape can SARA succeed as it was intended.

Rather than changing SARA, what is needed is for decision-makers to summon the political will to apply or develop strong laws to protect biodiversity at the provincial and territorial level, as well as the consistent implementation of protection measures under SARA by the federal government.

This article first appeared on Policy Options and is republished here under a Creative Commons license.