:
Thank you very much, Mr. Chair.
Good afternoon. I'm here representing Environment Canada. As was noted, my two colleagues are with me from Fisheries and Oceans and Parks Canada. Together, the three departments work to implement the Species at Risk Act.
I'll provide the opening presentation and, together, my colleagues and I will do our best to answer your questions.
My opening comments will provide a fairly high-level background on the act as a refresher to the committee and also will provide an overview of the draft SARA policy suite that has been made publicly available since the officials last appeared before the committee.
Let me provide a bit of context for the Species at Risk Act, or SARA. A number of acts, federal, provincial, and territorial, seek to conserve and sustain wildlife. Earlier acts, such as the Migratory Birds Convention Act, focused on encouraging action that would keep common species common. However, it was recognized that the preventative approach was not enough and that a formal emergency room for wildlife was needed to complement the mosaic of laws. Accordingly, in 2003 SARA was promulgated, focusing on wildlife at risk.
Turning to slide 4 in our deck, we can see that SARA is premised on the view that it is in our interest to protect species at risk. Canada's biodiversity is essential to the health and well-being of Canadians and our economy. Almost 14% of Canada's GDP depends on healthy ecosystems: forestry, agriculture, fisheries, and recreation.
Healthy ecosystems also provide services that aren't formally reflected in our national accounts, including carbon sequestration, clean air and water, disease and pest control, pollination of food crops, and aesthetic and other spiritual benefits. Ecosystems that provide these benefits require diverse, viable populations of species, and these species require habitat. The loss and fragmentation of habitat is the leading cause of species at risk.
Species found at the edge of their ranges, like many Canadian species at risk, may harbour important genetic adaptations, potentially contributing to the bank of genetic material essential to innovation in key economic sectors such as agriculture, forestry, and the pharmaceutical industry. The presence of species at risk can also provide us with an early warning that the ecosystem is out of balance. It is in our interest to protect species at risk.
SARA, as slide 5 indicates, was put in place to prevent wildlife species from becoming extinct or being extirpated and to support their recovery. It addresses all wildlife in Canada, ranging from large mammals to fish, insects, plants, and other species. SARA establishes a process for conducting scientific assessments of the population status of species and a mechanism for listing species. SARA also includes provision for the protection of individuals of listed wildlife species, their residences, and critical habitat.
SARA is prescriptive in many ways about how these purposes are to be met. It sets out timelines for actions under the act and requires consultation at most key decision points.
I'll turn to slide 6. Species do not recognize jurisdictional boundaries, so cooperation is crucial to the conservation and protection of species at risk. SARA explicitly recognizes the shared responsibility for conservation and wildlife in Canada. It is not something the federal government can accomplish on its own.
The Accord for the Protection of Species at Risk was agreed to by the federal government and provinces and territories in 1996. The goal of the accord is to prevent species in Canada from becoming extinct as a consequence of human activity. SARA is the key legislation for the federal government to implement the accord.
Under SARA, accountability is shared by the and the , who is also the minister responsible for Parks Canada. The Minister of the Environment is responsible for overall implementation of the act, for terrestrial species on federal lands, and for making recommendations to the GIC, and, as the minister responsible for parks, is also responsible for all species, terrestrial and aquatic, found in parks.
The is responsible for implementing the act for all aquatic species outside national parks and for providing the with listing recommendations for aquatic species. Provinces and territories are key partners and are responsible for terrestrial species on provincial crown and private lands. Given the shared responsibility for species at risk in Canada, we have a number of governance, advisory, and supporting structures.
I won't go through the slide on page 7, other than to note that it was presented at a previous appearance by officials and illustrates the framework under which provinces, territories, and we ourselves operate. We have taken this “SARA cycle”, as we call it, as the framework for the draft policy suite that I'll be speaking to next.
Let's turn to slide 8. Given the complexity of SARA, commitments were made early on to develop policies that would explain the federal government's understanding of the act and its obligations. Work started early after promulgation of SARA, but in light of the key role provinces and territories play regarding species at risk in Canada, policy development was suspended while the national framework just mentioned was developed.
Once the framework was complete, officials from Environment Canada, Fisheries and Oceans, Parks Canada, and the Department of Justice, and extensive engagement with provinces, territories, and other stakeholders as well, informed the development of draft policies. These draft policies were published in December 2009. We're currently finalizing the policy suite.
I will now step through each of the chapters of the policy suite, starting with page 9.
Chapter 1 focuses on assessment. Assessment is conducted by the Committee on the Status of Endangered Wildlife in Canada, or COSEWIC. COSEWIC is independent and is comprised of members from federal, provincial, and territorial governments, academia, aboriginal organizations, non-government organizations, and the private sector. COSEWIC assessments are based on quantitative criteria and draw on scientific knowledge, aboriginal traditional knowledge, and community knowledge.
I should highlight that COSEWIC assesses the status of wildlife in Canada, not globally, as is the case under American legislation. It is important to note that socio-economic considerations are not factored into COSEWIC's assessments and that COSEWIC's priorities are established by the committee and not by government.
Turning to slide 10, the second chapter of the policy suite describes the listing process and the protections that flow from listing under SARA. The next slide, which I won't go through, provides the listing steps as laid out in the policy.
One of the key points in this chapter relates to the nine-month SARA timeline for listing. The policy clearly states that the clock starts upon the receipt of the assessment by the Governor in Council, and not upon COSEWIC's delivery of the assessment to the . The policies also articulate that federal acts, such as fisheries acts, the Canada National Parks Act, and others will be used in addition to SARA as appropriate.
The chapter also clarifies the Government of Canada's interpretation of effective protection; that is, the protection that provinces and territories afford those species at risk for which they are accountable, i.e., not migratory birds, not aquatic species, but other species found on non-federal lands.
I would like to add a couple of points with regard to listing. First of all, listing is done through a regulatory process and, as such, is subject to the government policy on regulation, specifically the cabinet directive on streamlining regulation. One of the requirements of this directive is to include a regulatory impact assessment statement. Within it, you must consider socio-economic implications of the proposed regulatory change. In the case of SARA, it is at the listing point rather than at the assessment point that socio-economic factors come into play.
I'll turn to slide 12. This is the chapter that focuses on recovery planning and articulates that there is a two-step process for extirpated, endangered, and threatened species. We have to prepare a recovery strategy as well as an action plan, whereas for species of special concern we must only prepare management plans. Recovery strategies and action plans can...
I'm being told that I have one minute. I'm not quite sure where to go.
I think what would be important to flag here is that within recovery strategies we must identify critical habitat to the extent possible. This is a key consideration for the development of this document. The identification of critical habitat must specify both the location and the features that make it so important for species at risk.
The purpose of identifying critical habitat is to ensure that it is protected from human activities that would result in its destruction. As such, the amount, quality, and locations of habitat are derived from the stated population and distribution objective, but not from consideration of socio-economic factors. This is a key point that we remind many of our stakeholders about.
I will skip over slide 13 in the interests of time, other than to flag that over the five years--almost six years now--that SARA has been in force, we've developed a lot of understanding about what makes a good document. As such, we have recently updated our guidance to provide documents that are far more streamlined and practical.
I will turn now to slide 14, the draft implementation policy, the fourth step in the cycle. As was previously stated, the responsibility to protect species at risk in Canada is shared. Accordingly, as noted in this chapter of the policy suite, implementation is shared by various parties using various approaches.
SARA specifically stresses that the foundation of recovery planning is a stewardship approach. This chapter also lays out the variety of tools the federal government uses, including such things as federal funding programs, like the habitat stewardship program; our federal protected areas, including national parks; and also environmental assessment, regulation, permits, and so on.
Turning to slide 15, the last chapter of the SARA policy suite deals with monitoring and evaluation of the implementation of species protection, recovery, and management activity. Given that SARA is cyclical, monitoring and evaluation inform all of the SARA cycles through a variety of mechanisms. The objective is to assess progress toward achieving the recovery goals, the effectiveness of our actions, and the appropriateness of the goals and objectives we have set in the first place.
Turning to slide 16, I'd just like to conclude by providing a very short overview of the key protections afforded by SARA. First are the general prohibitions. These are laid out on the slide, and basically they say that no person shall kill, harm, harass, capture, possess, collect, buy, sell, or trade individual species at risk. As well, damaging or destroying the residence of one or more individuals is prohibited.
These general prohibitions apply only to extirpated, endangered, or threatened species, not to species of special concern. They automatically apply to migratory birds and aquatic species and to other species when they're found on federal lands.
The next key protection afforded by SARA is the protection of critical habitat, and that is the subject of much interest among many of our stakeholders. Once identified, critical habitat must be legally protected if found on federal lands. As for critical habitat found on non-federal lands, the laws of the province or territory must effectively protect it. The minister will consider that these laws effectively protect it when an instrument of a binding nature that is effective at producing the intended result under SARA is in place.
The final slide deals with the last two protections afforded by SARA, the first being the safety net order.
If, after consultation with the applicable province or territory, where the minister is of the opinion that the laws of the province or territory do not effectively protect the species, its residences or its critical habitat, the minister may recommend to the GIC that a prohibition be applied to protect the species, its residence, or any part of the critical habitat. This is what's known as the safety net order. In such instances, the minister will recommend to the GIC that an order be repealed once the province or territory has developed an instrument that provides effective protection.
The last provision is emergency protection orders. Under SARA, the GIC, on the recommendation of the competent minister, may make an emergency order in cases where protection under other SARA provisions will not be in place within a sufficiently timely manner to ensure the survival or recovery of the species. The minister would make this recommendation only after consultation with other competent ministers, i.e., the or the , and may discuss this with aboriginal peoples or governments as appropriate.
Having provided a fairly high level overview of the act and the draft SARA policy suite, I will conclude my opening comments. My colleagues and I would be pleased to address the committee's questions.
:
It's my pleasure. As a caribou biologist, it's fun to be here and think about them and 7,700 other species.
I'm going to build on what Mr. said. When SARA became law, 233 species were listed in schedule 1. I just heard you say that recovery strategies were required by June 2007 for 119. That was going to be one of my questions; you gave the answer, which you think is 119, although I thought it was 106. My homework indicates 106, but it's in that order of magnitude, so it's about half of what should be done. As well, management plans for a further 43 species of special concern were required by June 2008, and I think about 20 of those have been done.
Last year Ms. Wright came here and told us that the pace of implementation was improving. That's not really what I'm hearing, unless I'm not understanding it properly. Have you really improved in 2008, particularly relative to the expanding growth?
When are you going to catch up with the backlog, when are you going to be in compliance with the act, and why aren't the targets being met? Do you not have the resources you need? Do you not have the organization within the department? Do you not have the political will within the department? Are you getting interference from outside the department? There seems to be a problem.
Second, under SARA, it's up to the government to legally protect wildlife species designated by COSEWIC. You've assessed only 775 out of 7,700 designated species, if I'm correct. That's a tiny fraction--maybe 10% or worse--of the species in Canada. Again my question would be, “Why?”, and when and how will we make better progress?
My third question bothers me the most. There are two strategies for dealing with endangered species: one is to protect gene pools and population--short-term survival strategy to medium-term survival strategy--and the other, equally important, is long-term habitat protection. As of last year, if I understand this correctly, only 22 species have had their critical habitat even identified, never mind protected.
Let me give you an example that's near and dear to my heart. Caribou, according to your document, or according to Ms. Wright last year, are primarily managed by provincial jurisdiction. Trust me: in Ontario it's just not happening very well. It's a dubious assumption to say that provinces are doing this accurately. The West Moberly First Nations had to go to B.C. Supreme Court on this. They're near Chetwynd, B.C. They had to go to court to get a decision to protect critical habitat there, so the first nation actually had to do your job for you.
I'd like you to leave me at least a minute for a quick question for Gilles. I realize it's a “have you stopped beating your wife” type of question, but what's necessary here for Environment Canada to really start to move decisively and more quickly to protect critical habitat and identify the species and the habitats that are required?
:
I can start, but certainly my colleagues should jump in.
Critical habitat identification is not easy. It starts, first and foremost, with the COSEWIC assessment. The COSEWIC assessment lays out the biology of the species, the type of habitat it needs, and the threats that are leading to the species being at risk. Then the job is done; they make their decision based on these quantitative criteria and indicate if it's threatened, endangered, or extirpated. It's only for those three categories that you would have critical habitat requirements.
They also provide a general notion of where you would find the species, such as in southern B.C. or up in the north, but it's pretty much at a jurisdiction level. We then receive that information, and that's what starts the recovery planning process.
For a federal species, as opposed to a species within the jurisdiction of a province or territory, we would look at who the right people would be to put on a recovery team. The Wildlife Service that I lead has staff across the country in five regions. If it's a species that's primarily in the Atlantic region, obviously folks in the Atlantic region would lead with this. Is it a species found only in parks? If that's the case, then Parks Canada would lead. If it's broader than what's found in parks, typically the Wildlife Service would lead if it's a federal species. If it's a federal species--for example, a migratory bird--we typically have the expertise that we need, but we like to involve the province and territory to the extent that they can participate.
We form a team. Then we take the information from the COSEWIC assessment and start to look at the key threats and the critical habitat. They've given us a sense of the biological needs and the features of the habitat; now we have to put the marker on the land, if you will. You have to be able to actually identify it. It's not enough to say that it's generally over here; it has to be these coordinates, or at the edge of this lake. It has to be something that would easily tell somebody who is not a biologist whether they were in critical habitat or not.
We also have to identify the features of that particular landscape that make it so important to the species. That work takes some time. It requires fieldwork, with biologists going out and looking at the field, and it requires pulling out information that exists in literature, information beyond what was provided to us from COSEWIC. That definitely takes some time. Quite often. two or three field seasons are needed before you can start to understand whether it is critical habitat or whether the bird laid an egg there once and never came back and it's not really critical to the bird. That takes some time to work through.
Once we have that piece, the other parts of the recovery strategy can be developed in parallel. You need to look at what can cause destruction of the critical habitat. That's what the biologists spend many hours and many weeks on. Quite often, they have to go out onto landscapes, and if that landscape is owned by a private individual or is aboriginal land, there are some challenges around that. We need to work with people, we need to build awareness, and we need to build understanding.
We eventually get to the point of having a recovery strategy. We have 119 recovery strategies, some of which have critical habitat identified.
Then we need to do what's called compliance promotion. We need to develop materials that speak to the landowner or the aboriginal band or whomever, explaining that they have critical habitat on their land. It doesn't mean it's a no-go zone, but we indicate the kinds of activities that they should not do on the land because they would destroy this critical habitat, which is prohibited under SARA. We work on compliance promotion materials; then we get the enforcement boots on the ground to follow up and ensure that the compliance is happening.
It does take time. It's a bit complicated, because biology is never easy.
Can I go back to some questions I asked earlier, which deal with the thinking that underpins this act? I think Mr. rightly pointed out that it was a difficult piece of legislation to craft and that it does have a bearing on people's interests--private interests and public interests.
It hearkens back to what I was alluding to earlier, which is that as long as we keep pretending that eco-services and the species that reside in this country are free, that they have no value, that they're not costed, and that they're not part of the national accounts, then it will be business as usual. We will continue to draw down that capital with impunity and, every so often, because of SARA, we'll catch a species that is in trouble and we'll go through a detailed scientific process to say, “Houston, we have a problem”, and we'll send a flare up into the sky.
But the reality on the 2008 report that was just tabled here, if I understand it, is that the second report in the wild species series, “Wild Species 2005”, says we have “general status assessments” for a total of 7,732 species. That's 7,732, but then it goes on to say that the total number of species in Canada is estimated at more than 70,000--and we don't even know if that number is accurate. So we're being told that 10% of the estimated species in this country has had some kind of application of scientific analysis; that's nowhere, so I want to ask you a question.
You may not be able to answer this question. I'm just thinking out loud. But how are we expected to believe that SARA as presently constituted is going to be anything more than a band-aid solution at the back end, frankly, when we see that there are stressors on particular species, we deploy scientific capacity, and we report back to the state that we have a problem? This seems to be absolutely a losing battle.
If we don't overhaul the approach to species, and I would go further... I asked questions about this before, in the last round, Mr. Chair, to witnesses that came here about SARA. I asked a series of questions about compensation. If I'm a landowner and I have several hundred acres, or a thousand acres, or fifty acres, and there are species of plants and animals on that land, and I'm expected to be a steward of those species, is society not expected to compensate me for that good stewardship, whether it's through a tax credit, compensation in cash, or as part of revenue?
How do you ask this of private landowners? I mean, this whole system was a beginning. The best way to start is to start; we had nothing before. Now we have something to work off. You're on the front lines as practitioners. You deal with this act every day. I'm just trying to get a sense of what we have to do here to deal with a shortfall. What are the next steps you would propose as practitioners on the front lines who are in the business of applying this act?
What do we have to do to improve the situation, given what I've just put out on the compensation angle and the fact that it's a losing battle? We don't even have the science. For example, we have a Geological Survey of Canada, but we don't have a biological survey of Canada. What would you say are the next two or three steps that as legislators we can recommend to the government in order to be able to say that this is how we can improve this act on the front lines?
Let me go straight to an example. We have a situation in a river where there used to be a port. The port has been closed. It needs to be reopened; there's silt in the port. It has been determined that there is a species at risk.
This species at risk is a particular mussel. We've been trying to bring a business into an area that had a population of 12,000 and has lost over 6,000 jobs, and we've basically lost that business coming in. In your presentation, you talk about how you cannot “Kill, harm, harass, capture or take [an] individual” or “Damage or destroy the residence of one or more individuals”.
DFO's own engineers have said that the habitat that is there now because of silt isn't one that this particular individual would live in. We could take you up the stream, where there are millions of them plugging up drains, and yet this was about the law. It was about the written word. The field people--not all of them--don't seem to have any co-relationship, quite honestly, between the balance of an economy and the balance of a species at risk. I mean, we don't even do this to humans. We can't have laws that say that if I were to harm or harass, it almost becomes criminal.
Then we were asked for not tens of thousands of dollars, but tens of thousands of dollars plus, up to $100,000, and it was, “Well, you can do this scientific research”. We had an individual who said, “I can do that for $2,500”. That individual said, “I'll take my boat out, I've lived here all my life, I know what the river is like, I know what's in the bottom, and I know there aren't any”. Said that individual, “I'll put the small pole down and I'll measure the bottom because I can feel it”.
All I'm saying is I that agree with the species at risk, but somewhere along the way we've lost our perspective about the balance in some cases. We always talk about the difficulty in listing. I'm asking about how we delist those species that are not at risk. I would just ask you this: how do you determine the thresholds of species at risk in regions and areas where I can take you and would be glad to show you? I don't know what the threshold is; it must be beyond...
But if the people I was dealing with harmed or harassed one of these little mussels, it was almost to the point that there were going to be criminal charges, or a $200,000 fine, I think it was. How do we get to a threshold in areas? Who determines what that threshold is? Who determines the critical habitat evaluation? Who does that and is it in fact a stumbling block to delist?
So there are four questions for you, and then I have another one.
:
I understand that. That's why I'd rather move it away from the specific.
In terms of thresholds, the threshold for an assessment of a species to be determined to be at risk is developed by COSEWIC using a series of criteria that COSEWIC has based on international criteria. These are not criteria that are arbitrary; they are well understood and well utilized in the international environment. The population decline and the population threat criteria are established by COSEWIC and used by COSEWIC in its scientific assessment as to whether the species is deemed to be at risk.
The critical habitat identification is guided, at least to some degree, by the COSEWIC assessment, the COSEWIC report, but the final identification is the minister's prerogative. The work done is led by government officials to determine what is the critical habitat component, i.e., the piece that is essential for survival and recovery over the overall habitat of the species. That's very much led by government officials.
When we come to what might be a determination, that's published for public commentary. As my colleagues mentioned, in many cases it's done in very close collaboration with scientists and stakeholders as we try to determine what this is.
The delisting question has been raised a number of times. As far as I can understand the process--because we've not got there yet--it's essentially the same as the listing process. It's a change in the regulation, which would take a species off schedule 1 of SARA. Unless my colleagues have different views, I would see this as being triggered by the same process that we would use to list a species, i.e., we would need an evaluation by COSEWIC, either as part of its 10-year re-evaluation of every species, or if the committee is of the view that the population status has changed substantially and requires an earlier review.
When we get that assessment, if COSEWIC were to say, for example—and this has happened—that they have not taken them off, but have downgraded the threat status of species, that would be where the scientific assessment has said that this species is no longer at the risk level that they thought it was, and they would assess it as being less at risk. We would take that into account and that could become a delisting decision.
We're back to caribou. I have a rhetorical question that you don't have to answer.
With caribou, we have scientists who have already given Environment Canada recommendations on critical habitat, and repeatedly, in my understanding. It seems to me that the real problem is that the recommendations are not being implemented. They're being ignored. You can let me know later if I'm wrong about that.
It's not easy and it's a big issue, but it's really pretty simple. You're on the right track with what you've just said. I would agree with it. But as for all we need to protect, again, it's simple, but not easy. We need to protect winter habitat currently used, winter habitat supply for the future--to maintain or create that future habitat-- and calving habitat and corridors, and we need to avoid trails, roads, and seismic corridors and things that allow humans and predators to access the caribou. It's a simple prescription. And it's not a third of the land base and not an eighth of the land base; it's probably way less than that. It's doable, so please get on with it.
The critical habitat is what this is all about. As you can probably hear, I am feeling a little frustrated that we're moving so slowly in this area. For example, to move away from caribou, the Federal Court found that in the Pacific region, Fisheries and Oceans Canada made a policy decision not to include critical habitat in recovery strategies--I'll quote--“in clear contravention of the law”. It was apparent in that judgment that the main reason the government delayed identifying critical habitat was that they prejudged, illegally, that there were socio-economic constraints. Again, we just have to get past that.
Then, on the last thing, which will lead to a question here, could you, Ms. Poter, give me, today or later, examples of enforcement of prohibitions against destroying critical habitat for any species under any agency, anywhere, at any time?
I found this very interesting. I think each of us has.
I have more questions than I have time, so I'll try to be precise. I want to focus on two things. One is the time restraints and what are realistic times; it's very prescriptive to the minister. Also, what would be fair in compensation?
Before I get into that, I just want to make a quick comment on the importance of adequate notice to the public. I love to hike. With new technologies like GPS, if you're out hiking... Let's say you get out into an area and you use GPS, what if you had some sort of GPS warning that you were in a critical habitat area instead of having maps? A hiker might be using a five-year-old map that was handed to them from a friend or whoever. If hikers are using GPS, which is a very common tool when they're out, you could have a warning on there that would give you a little notice. Use of markers at the head of a trail may have very limited success, because you might be getting onto that trail by parking your car somewhere, and if you know a shortcut, you could miss all the markers.
I think that one of the big controversies at the beginning of SARA was fair market compensation for land. Mr. touched on it. What if a good corporate citizen is going to restock a stream with a species that is at risk? If they restock the stream and that fish gets caught in a turbine, if there are no socio-economic considerations in critical habitat, you could have a multi-billion-dollar facility shut down permanently.
Under SARA, the only place right now that you have socio-economic considerations is where it's in the hands of the minister. That's my understanding. You do not have, through COSEWIC, the critical habitat.
I'm running out of time very quickly, but you mentioned extraordinary loss. What is the definition of “extraordinary” loss? Is it fair market compensation? I don't think so, because I think that was what was asked for at the beginning of SARA. SARA did get through and now it's under review, but could you give me the definition of “extraordinary” loss?
If a hydroelectric plant is going to have to be shut down because of an endangered species in that stream and it is in critical habitat, who is going to pay for the shutting down of that plant? Would that be extraordinary loss? What about a farmer who didn't realize, in plowing his field, that he had destroyed the habitat of a migratory bird? Is he now in big trouble? He didn't know the bird was there, but under SARA, under mens rea, he is still in big trouble.
In the very short period of time I've left you, I think those are two very big considerations that were concerns at the beginning of SARA, too.