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Don’t Wing It – Implications for Project Proponents under Canada’s Species at Risk Act

May 31, 2023 Environmental Bulletin 6 minute read

The federal Species at Risk Act (“SARA”) is a key piece of environmental legislation which aims to protect wildlife species and their habitat. SARA, which came into effect in 2002, provides for a process to assess and confirm the status of wildlife species. To that end, SARA establishes the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”), an independent body of experts responsible for assessing and identifying species that may be at-risk.

There are a number of steps that must be followed before a species becomes listed based on its risk category designation under SARA.

COSEWIC, which meets twice per year, plays a key role in the implementation of SARA. Its assessment process is made up of the following three steps:

  • selection of wildlife species requiring assessment;
  • compilation of available data, knowledge and information, leading to COSEWIC status reports; and
  • assessment of wildlife species’ risk of extinction or extirpation and subsequent designation[1].

At the end of that process, COSEWIC will recommend a status designation for the species assessed, from one of the following categories: extinct, extirpated, endangered, threatened, special concern, data deficient, or not at risk.

On receiving a copy of an assessment of the status of a wildlife species from COSEWIC, the federal Minister of the Environment must, within 90 days, include, in the Species at Risk Public Registry maintained under SARA, a report on how the Minister intends to respond to the assessment and, to the extent possible, provide timelines for action.[2]

Within nine months after receiving an assessment, the Federal Government (acting through the Governor in Council) may review that assessment and may, on the recommendation of the Minister of the Environment, either (a) accept the assessment and add the species to the list maintained under SARA, (b) decide not to add the species to that list; or (c) refer the matter back to COSEWIC for further information or consideration.

If the Federal Government decides not to add the species to the list or refers the matter back to COSEWIC, the Minister of the Environment must include a statement in the public registry setting out the reasons for that decision.

Furthermore, if the government does not take any action within nine months after receiving an assessment, the Minister of the Environment must amend the list in accordance with COSEWIC’s assessment.

The listing of a species as an extirpated species, an endangered species, or a threatened species has significant consequences under SARA. For each such species, the competent minister (which is often times the federal Ministry of the Environment) must prepare a strategy for its recovery as well as one or more action plans based on the recovery strategy. The recovery strategy must be proposed within one year after the wildlife species is listed, in the case of a wildlife species listed as an endangered species, and within two years after the species is listed, in the case of a wildlife species listed as a threatened species or an extirpated species. The recovery strategy must include, in particular, an identification of the species’ critical habitat (if the competent minister determines that the recovery of the listed wildlife species within that habitat is feasible). In addition, both the strategy and the action plans are subject to public consultation.

The content of the recovery strategy has an impact on the actions that may be undertaken by project proponents in critical habitats. In particular, SARA provides that no person shall destroy any part of the critical habitat of any listed endangered species or of any listed threatened species if (a) the critical habitat is on federal land, (b) the listed species is an aquatic species; or (c) the listed species is a species of migratory birds protected by the Migratory Birds Convention Act, 1994. Moreover, if the relevant provincial or territorial minister has also classified the species as endangered or threatened, SARA further provides that no person shall destroy any part of the habitat of that species that the provincial or territorial minister has identified as essential to the survival or recovery of the species and that is on federal lands in the province or territory. There are further prohibitions on damaging or destroying the residence of endangered or threatened species.

Two recent examples illustrate the potential impact of SARA on projects. At its last meeting, COSEWIC assessed[3], among other species, the Eastern Red (Lasiurus borealis), Hoary (Lasiurus cinereus), and Silver-haired (Lasionycteris noctivagans) bats for the first time and recommended they be designated as endangered, being the highest level of risk categorization under SARA. Of note, COSEWIC identified wind turbines as a primary reason for such threat.

In April of this year, the Federal Government made an order[4], published in the Canada Gazette on May 10, acknowledging receipt of the assessments on species that include the monarch butterfly (Danaus plexippus), which COSEWIC proposes to list as endangered (it is currently classified as a species of special concern). Lands owned or occupied by Aéroports de Montréal (Montreal Airport Authority) are known to serve as one of that butterfly’s habitat and development thereon has been subject to scrutiny by local conservation organisations in recent years. In the order, the Federal Government indicated the Minister of the Environment would propose a second order, which will include a recommendation to the government to amend the list of species at risk in accordance with COSEWIC’s recommended designation for the species.

While the ongoing processes pertaining to the species discussed above have no immediate legal effect on federal lands (and the development of projects thereon), they may affect in the medium and long-term, projects to be developed, in whole or in part, on federal lands.

Emergency Orders

Another key federal power under SARA is the power of the Federal Government, on the recommendation of the applicable minister, to issue an emergency order. The minister must make that recommendation to the Federal Government if any given listed species faces imminent threats to its survival or recovery (i.e., for species that have been classified as endangered, threatened or extirpated). Notably, both federal and non-federal lands may be subject to an emergency order. On non-federal lands, such an order may identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and may include provisions prohibiting activities that may adversely affect the species and that habitat. It is on the basis of this power that the Federal Government made an emergency order for the protection of the western chorus frog (Pseudacris triseriata) in November 2021[5]. The implication of this is that a number of measures have been identified for the protection of the species’ habitat, which is located in partially-developed land in Quebec in the municipalities of La Prairie, Candiac and Saint-Philippe. The order includes broad prohibitions on activities, including the disturbance of soil and vegetation, altering of surface water, installation or construction of maintenance work or infrastructure, operation of motor vehicles, installation of structures, deposit or discharge of materials or substances (including snow, sand, soil), and application of pest control products or fertilizers.[6]

Implications for Project Proponents

Project proponents should be cognizant of the powers that the Federal Government has with respect to species. Projects proposed or existing in habitat where there are species at risk may be subject to regulatory measures to protect such listed species, and importantly, may be subject to particularly onus requirements or restrictions where the project is located on or near habitat that is home to species that are classified as endangered, threatened or extirpated.

Commissioner of the Environment and Sustainable Development Audit Conclusions

Furthermore, the Commissioner of the Environment and Sustainable Development in its audit of the Federal Government’s efforts to plan and report on the recovery of wildlife species at risk under SARA, has recently declared that the Federal Government’s efforts to recover species at risk are falling short. Notably, the Federal Government’s “commitment to halt reverse biodiversity loss by 2030 were lacking” because the three branches of the Federal Government (i.e. Environment and Climate Change Canada, Fisheries and Oceans Canada, and Parks Canada) did not complete all of the four key documents required for the management and recovery of a growing list of wildlife species at risk, being recovery strategies, action plans, management plans and implementation reports.  It is within this context that the Federal Government may decide to dedicate more efforts to addressing species at risk, particularly as the number of species listed under SARA is expected to rise, in part due to climate change. Moreover, it is anticipated that because of large backlogs and lack of progress, the Federal Government may take a broader multi-species approach to planning, reporting and recovery efforts to streamline its efforts and provide better outcomes for species.  However, for project proponents, this broad approach may implicate projects that would not otherwise have been captured, or otherwise impose aggressive restrictions on activities.

How we can help

With offices in Canada’s major business centres across the country, McMillan offers a wealth of experience in all aspects of the impact of environmental laws on business activities. In particular, McMillan’s environmental team can help you navigate the potential implications of SARA on your business, including in the context of the potential development or expansion of a project – including wind and energy projects, or the purchase of land. Do not hesitate to contact us for more information.

[1] COSEWIC. COSEWIC Assessment Process, Categories and Guidelines, November 2021.
[2] The public registry is available online.
[3] COSEWIC, Seeing conservation solutions for unseen species, May 2023.
[4] Order Acknowledging Receipt of the Assessments Done Under Subsection 23(1) of the Act, Canada Gazette, Part II, Volume 157, Number 10, SI/2023-13.
[5] Emergency Order for the Protection of the Western Chorus Frog Great Lakes / St. Lawrence — Canadian Shield Population (Longueuil), Canada Gazette, Part II, Volume 155, Number 25, SOR/2021-231.
[6] Commissioner of the Environment and Sustainable Development, Report 2 – Follow-up on the Recovery of Species at Risk (part of 2023 Reports 1 to 5 of the Commissioner of the Environment and Sustainable Development to the Parliament of Canada), 2023.

by Julia Loney and Martin Thiboutot

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2023

 

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