November 2, 2004
Mondaq News
Canada: Endangered species protection escalates in British Columbia
Janice Walton
On June 1, 2004, the prohibitions in the federal Species at Risk Act (SARA)
took effect, creating an added layer of protection for species at risk
in Canada. Companies operating resource-based industries, such as forestry,
mining, and oil and gas extraction, may be impacted by government actions
to protect species, and by the prohibitions against harming certain species
and their critical habitats.
Currently, 233 species are listed in SARA as endangered, threatened, extirpated,
or of special concern. On October 18, 2004, the Federal Cabinet proposed
an order to add 63 species to the list of species.
SARA provides that no one may kill, harm, harass, capture or take, possess,
collect, purchase, sell or trade an individual (or any derivative of an
individual) of a listed extirpated, endangered or threatened species;
or damage or destroy the residence of a listed endangered or threatened
species, or a listed extirpated species if a recovery strategy has recommended
that the species be reintroduced into Canada. The list of endangered,
threatened or extirpated species is reproduced below.
Contravention of SARA's prohibitions can result in maximum fines ranging
from $50,000 to $1,000,000 and/or imprisonment for up to five years. A
person convicted of an offence for a second or subsequent time could pay
up to double the maximum fines. Fines imposed for an offence involving
more than one plant, animal or other organism may be calculated as though
each plant, animal or organism had been the subject of a separate offence.
SARA also contains extensive planning components. Once a species has been
listed in SARA, recovery strategies, action plans, management plans or
stewardship plans must be developed to identify species' critical habitat
and measures necessary for recovery. As of June 1, 2004, SARA also prohibits
the destruction of any critical habitat identified in a recovery strategy
or action plan. All of these plans have requirements for consultation
with provincial and territorial governments, aboriginal organisations,
landowners, lessees and others directly affected by the plans.
Under Canada's Constitution, the regulation of wildlife is not clearly
allocated to either the federal or provincial government and, since SARA
is a federal act, it is limited to federal land, except for aquatic species
and migratory birds, which the federal government refers to as "federal
species". So, for example, SARA will apply in British Columbia to
the Limnetic Vananda Creek Stickleback, an aquatic species, and to the
White-Headed Woodpecker, which is a migratory bird. Thus, anyone who harms
these species or their residences may be subject to charges under either
the Fisheries Act or the Migratory Birds Convention Act, and SARA, with
its higher fines and potential for longer jail time. This is, of course,
in addition to the stigma of being convicted of harming an endangered
species.
For the rest of the species, such as the non-migratory Northern Spotted
Owl, SARA's prohibitions will only apply on federal lands, including First
Nations reserves and national parks. However, SARA also contains what
has been referred to as a "safety net" for protection of "non-federal
species" on provincial land. On the recommendation of the federal
Minister for the Environment, Cabinet may order that SARA applies to non-federal
lands in a province (or territory). The recommendation is made if the
Minister is of the opinion that provincial laws do not adequately protect
the species. SARA also allows an Emergency Order to be made by the Minister
to extend SARA's protection to non-federal species. Whether the federal
government will impose the sanctions in SARA on provincial or territorial
land is, of course, highly dependent on the question of whether a province
is already providing adequate protection for a species or its habitat.
In response to this provision, the Government of British Columbia has
amended its Wildlife Act to add provisions for protection of species at
risk similar to those in SARA. As of the end of October 2004, these amendments
are not in force as the province has yet to release its own list of species.
When it does, there will be widespread species protecti on throughout
British Columbia, either under SARA or the B.C. Wildlife Act.
Currently listed in SARA as extirpated, endangered or threatened:
Extirpated
Mammals. Bear, Grizzly (Prairie population); Ferret, Black-footed;
Walrus, Atlantic (Northwest Atlantic population); Whale, Grey (Atlantic
population).
Birds. Prairie-Chicken, Greater; Sage-grouse,
Greater (British Columbia population).
Amphibians. Salamander, Tiger (Great Lakes population).
Reptiles. Lizard, Pygmy Short-horned (British Columbia population);
Rattlesnake, Timber.
Fish. Chub, Gravel; Paddlefish.
Molluscs. Wedgemussel, Dwarf.
Lepidopterans (Butterflies and Moths). Blue, Karner; Elfin, Frosted;
Marble, Island.
Plants. Mary, Spring Blue-eyed; Tick-trefoil, Illinois.
Endangered
Mammals. Badger, American; Caribou; Woodland (Atlantic-Gaspésie
population); Fox, Swift; Marmot, Vancouver Island; Marten, American (Newfoundland
population); Whale, Killer (Northeast Pacific southern resident population).
Birds. Chat, Western Yellow-breasted (British Columbia population);
Crane, Whooping; Curlew, Eskimo; Flycatcher, Acadian; Owl, Barn (Eastern
population); Owl, Burrowing; Owl, Northern Spotted; Plover, Mountain;
Plover, Piping; Rail, King; Sage-grouse, Greater
(Prairie Population); Shrike, Eastern Loggerhead; Sparrow, Henslow's;
Tern, Roaseate; Thrasher, Sage; Warbler, Kirtland's; Warbler, Prothonotary;
Woodpecker, White-headed.
Amphibians. Frog, Northern Cricket; Frog, Northern Leopard (Southern
Mountain population); Frog, Oregon Spotted; Frog, Rocky Mountain Tailed;
Salamander, Tiger (Southern Mountain population).
Reptiles. Snake, Night; Snake, Sharp-tailed; Turtle, Leatherback.
Fish. Dace, Nooksack; Lamprey, Morrison Creek; Salmon, Atlantic
(Inner Bay of Fundy populations); Stickleback, Benthic Paxton Lake; Stickleback,
Benthic Vananda Creek; Stickleback, Limnetic Paxton Lake; Stickleback,
Limnetic Vananda Creek; Trout, Aurora; Whitefish, Atlantic.
Molluscs. Bean, Rayed; Lampmussel, Wavy-rayed; Mussel, Mudpuppy;
Physa, Hotwater; Riffleshell, Northern; Snail, Banff Springs; Snuffbox.
Lepidopterans (Butterflies and Moths). Blue, Island; Checkerspot,
Taylor's; Ringlet, Maritime.
Plants. Agalinis, Gattinger's; Agalinis, Skinner's; Ammannia, Scarlet;
Avens, Eastern Mountain; Balsamroot, Deltoid; Bluehearts; Braya, Long's;
Bugbane, Tall; Bulrush, Bashful; Bush-clover, Slender; Buttercup, Water-plantain;
Cactus, Eastern Prickly Pear; Coreopsis, Pink; Cryptanthe, Tiny; Fern,
Southern Maidenhair; Gentian, White Prairie; Ginseng, American; Goat's-rue,
Virginia; Goldenrod, Showy; Lady's-slipper, Small White; Lotus, Seaside
Birds-foot; Lousewort, Furbish's; Lupine, Prairie; Milkwort, Pink; Mountain-mint,
Hoary; Mulberry, Red; Orchid, Western Prairie Fringed; Owl-clover, Bearded;
Paintbrush, Golden; Plantain, Heart-leaved; Pogonia, Large Whorled; Pogonia,
Nodding; Pogonia, Small Whorled; Quillwort, Engelmann's; Sanicle, Bear's-foot;
Sedge, False Hop; Sedge, Juniper; Spike-rush, Horsetail; Sundew, Thread-leaved;
Thistle, Pitcher's; Toothcup; Tree, Cucumber; Trillium, Drooping; Twayblade,
Purple; Willow,Barrens; Wintergreen, Spotted; Wood-poppy; Woodsia, Blunt-lobed;
Woolly-heads, Tall (Pacific population).
Lichens. Centipede, Seaside.
Mosses. Moss, Poor Pocket; Moss, Rigid Apple.
Threatened
Mammals. Bat, Pallid; Bison, Wood; Caribou, Woodland (Boreal population);
Caribou, Woodland (Southern Mountain population); Ermine; Otter, Sea;
Shrew, Pacific Water; Whale, Killer (Northeast Pacific transient population);
Whale, Killer (Northeast Pacific northern resident population).
Birds. Bittern, Least; Falcon, Peregrine; Goshawk, Northern; Gull,
Ross's; Murrelet, Marbled; Pipit, Sprague's; Warbler, Hooded.
Amphibians. Salamander, Allegheny Mountain Dusky; Salamander, Jefferson;
Salamander, Pacific Giant; Spadefoot, Great Basin; Toad, Fowler's.
Reptiles. Gartersnake, Butler's; Ratsnake, Black; Snake, Eastern
Fox; Snake, Eastern Hog-nosed; Snake, Queen.
Fish. Chubsucker, Lake; Darter, Eastern Sand; Gar, Spotted; Lamprey, Cowichan
Lake; Minnow, Western Silvery; Sculpin, Cultus Pygmy; Sculpin, Shorthead;
Shiner, Rosyface (Manitoba population); Smelt, Lake Utopia Dwarf; Wolffish,
Northern; Wolffish, Spotted.
Molluscs. Abalone, Northern.
Lepidopterans (Butterflies and Moths). Hairstreak, Behr's; Skipper,
Dun (Western population).
Plants. Aster, Anticosti; Aster, Western Silvery; Aster, White-top;
Blue-flag, Western; Braya, Fernald's; Buffalograss; Coffee-tree, Kentucky;
Colicroot; Corydalis, Scouler's; Crest, Golden; Deerberry; Gentian, Plymouth;
Goldenseal; Greenbrier, Round-leaved (Great Lakes Plains population);
Lily, Lyall's Mariposa; Mosquito-fern, Mexican; Mouse-ear-cress, Slender;
Orchid, Phantom; Prairie-clover, Hairy; Redroot; Sanicle, Purple; Soapweed;
Spike-rush, Tubercled; Star, Dense Blazing; Violet, Yellow Montane; Water-pennywort;
Water-willow, American.
Mosses. Moss, Haller's Apple.