June 18, 1997
The protection of wildlife habitat and the restoration of species populations that have been depleted as a result of human activity are recognized as critical factors for the protection and rehabilitation of our environment. The disappearance of animal and plant species is greatest in the tropics, since ecosystems such as the tropical rainforests house the greatest diversity of species. The ecosystems in the Northern areas of the world contain lower levels of species diversity but these species are subject to the same threats as their counterparts in the south. The degradation and loss of habitat, the killing of species for sport, subsistence and profit, the introduction of non-native species and the release of toxic chemicals into the environment are factors that affect all wildlife and vegetation throughout the world; those found in Canada are no exception.
As of April 1996, 19 species of wildlife and two plant species had disappeared from Canada. Some of these species, such as the black-footed ferret and the greater prairie-chicken, continue to survive in other countries. Other species, such as the Labrador duck and the passenger pigeon, no longer exist anywhere; they have become extinct. In 1976, the Canadian government created the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) to determine and monitor the status of wildlife in Canada. This committee is composed of representatives from each provincial and territorial government wildlife agency, four federal agencies (Canadian Museum of Nature, Canadian Parks Service, Canadian Wildlife Service and Department of Fisheries and Oceans) and the following national conservation organizations: the Canadian Nature Federation, the Canadian Wildlife Federation and World Wildlife Fund (Canada). These representatives usually have a biology-based scientific background or traditional community knowledge of species at risk. If COSEWIC is alerted that a species is suspected of decreasing in numbers, it commissions a status report (funding permitting) and classifies the species in one of five categories: vulnerable, threatened, endangered, extirpated or extinct.(1) Mammals, birds, reptiles, amphibians, fish, marine molluscs, plants and lichens are the groups of species listed. Factors such as the current and natural population levels, the rate of reproduction, the amount and quality of available habitat as well as the range of a species are all examined when determining the status of a species. As of April 1996, there were over 240 species listed in one of the five categories, or considered “at risk”; 157 of the listed species were mammals, birds, amphibians, reptiles or fish.(2)
In 1988, a national recovery organization, called RENEW (Recovery of Nationally Endangered Wildlife), was created by the Council of Canadian Wildlife Ministers. The RENEW committee is chaired by a representative of the Canadian Wildlife Service and is composed of provincial and territorial wildlife directors and representatives from the Canadian Nature Federation, the Canadian Wildlife Federation and the World Wildlife Fund (Canada). RENEW is responsible for generating recovery plans, organizing recovery teams and implementing recovery plans for those species appearing on the species at risk list. The objectives of RENEW include preventing any species from becoming extinct as well as initiating recovery plans for all species that are listed as threatened, endangered and extirpated. The RENEW recovery plan programs are coordinated efforts involving both federal and provincial scientists as well as scientists from local conservation authorities, universities, zoos and private companies. Currently RENEW has more than 10 recovery plans in action but the list of endangered species in Canada continues to grow with eight new species being added to the list in 1996. Recovery plans are aimed at protecting individual species, but when funds allow, these plans are often designed to protect the natural habitat of a species, which would protect many other species at the same time.
Current Provincial Protection
Of the 10 provinces in Canada, four have specific endangered species legislation: Manitoba, New Brunswick, Ontario and Quebec. Even though COSEWIC creates an endangered species list, the provinces are under no obligation to recognize this list. Ultimately it is a government minister who designates which species are to appear on a province’s list. The legislation in each province makes it illegal for anyone to kill, disturb or interfere with a member of an endangered species unless a permit has been granted by the minister in charge (usually the minister of environment or minister of natural resources). The legislation applies to all animals on the list in each province regardless of whether the violation occurs on public or private land.
The New Brunswick legislation has a provision that makes it an offence to destroy or interfere with the habitat of any endangered species. New Brunswick has a different set of punishments for companies and individuals who violate the prohibitions in the Endangered Species Act. Individual first time offenders can pay a fine of up to $2,500 while repeat offenders can be fined up to $5,000 or spend up to 90 days in jail. Company fines can be levelled at a maximum of $9,000.
Legislation in Ontario has provisions similar to those seen in the New Brunswick legislation. However, to be convicted under this legislation the disruption of habitat and/or the interference with species on the list must be deliberate and purposeful. The acts in the other provinces do not require that the actions be done on purpose. The potential punishment under the Ontario Endangered Species Act is substantial; it includes a fine of up to $50,000 or a jail term of up to two years.
The legislation in Quebec contains provisions that ensure that the protection of endangered species is a coordinated effort between the Ministry of Environment, the Ministry of Recreation, Fish and Game and the Ministry of Energy and Resources. The protection in the Quebec act is for species as well as habitat; however, the Minister of Environment can authorize the destruction of endangered habitat under a variety of circumstances. The Quebec act also has a different set of penalties for individuals and companies. Individuals that are first time offenders can be fined from $500 up to $20,000, while repeat offenders can be fined from $1,000 up to $40,000 and/or can be jailed for up to a year. Companies face fines of between $1,000 and $40,000 for first time offenders and fines of between $2,000 and $80,000 for repeat offenders. Even though the protection of this act could be substantial, there are no species officially listed on the Quebec endangered species list. To date, COSEWIC has identified at least nine animal species as endangered in Quebec.
The Endangered Species Act of Manitoba addresses both species and habitat; it also has a provision safeguarding the resources used by endangered species. This resource provision might extend the scope of the act to protect species of animals and plants that are not necessarily endangered but which are vital to the survival of an endangered species. As in Quebec and New Brunswick, fines for companies and individuals are different. Individuals can be fined up to $5,000 and/or imprisoned for up to six months; corporations can be fined up to $50,000.
Other provinces, such as Alberta, have sections of pre-existing acts that address endangered species concerns. In Alberta, an endangered species list is generated as a function of the Wildlife Act. Penalties for killing or disturbing these species can be a fine as high as $100,000 or imprisonment for six months. These endangered species provisions do not protect habitat to the same degree as seen in those provinces with specific endangered species acts.
Current Federal Protection
There are 12 pieces of legislation that could be applied to the protection and conservation of endangered species. The major shortcoming of these pieces of legislation is that they are only enabling; they do not compel the federal government to monitor or implement recovery plans for endangered species. Of these pieces of legislation there are essentially two acts that the federal government has used to protect endangered species: the Migratory Birds Convention Act and the Fisheries Act.
Migratory Birds Convention Act
The Migratory Birds Convention Act, which applies to all of Canada, was passed in 1917 as a result of a treaty with the United States to protect birds migrating through both countries. Migratory birds that are either game species, insect eating species or those species that are either useful or harmless to man receive protection. The Act protects any migratory bird species, endangered or not, that falls under one of the three categories. The legislation permits hunting seasons for game birds and it allows species from the other two categories to be taken for native and scientific purposes. The legislation also allows for the creation of migratory bird sanctuaries within which all hunting and disturbance of migratory birds is prohibited. The act protects both birds and their nests; anyone caught committing an offence under the act faces a fine of between $10 and $300 or a jail term of up to six months. Efforts have been made to increase the penalties under this act; however, the conflict between wildlife preservation programs for non-game species and the quantity of birds allowed to be taken under native hunting rights remains a stumbling block.
The Migratory Birds Convention Act protects birds rather than their habitat. In 1973, the Canada Wildlife Act was created to help protect habitat for those birds protected under the Migratory Birds Convention Act. Under this act the minister of environment has the authority to acquire and manage habitats for birds and, with the approval of the provinces, other wildlife. The minister may, with the cooperation of a province, take any measures deemed necessary for the protection of any species of wildlife in danger of extinction. However, there is nothing in the act requiring the minister to create any lists of such species or to initiate any programs protecting such species. In comparison, the Migratory Birds Act makes certain amounts of protection obligatory. Protection under the Canada Wildlife Act is only a function of the decisions of the minister of environment coupled with the cooperation of provinces.
The Fisheries Act, enacted in 1868, gives the federal government jurisdiction over all fisheries in transboundary and international locations as well as those fisheries in provinces with marine waters (this includes all provinces except Alberta and Saskatchewan). The act is administered by either the Department of Fisheries and Oceans or a provincial department, such as the Ministry of Natural Resources in Ontario, depending on the location of the fishery. Under the act, fish are broadly defined so as to include shellfish, crustaceans and marine mammals; all categories are protected at each of their life cycle stages from eggs to maturity. This broad definition has allowed the federal government to have control over endangered marine species such as the beluga whale, the bowhead whale and the right whale.
The act prohibits fishing without a license. Any work that harmfully alters or destroys fish habitat (except under permission of the minister) is also prohibited. Fish habitat is broadly defined to include spawning grounds, nurseries, rearing and feeding areas as well as migration sites. Penalties for fishing without a license can be as high as $500,000 with a possible two year jail term for repeat offenders. Damaging fish habitat, which includes whale habitat under the act, can result in a fine as high as $1,000,000 per day or imprisonment for up to three years for subsequent offenders.
Under the act the minister has the authority to review works that might disrupt or destroy fish habitat. These works usually include a plan that minimizes the damage to fish habitat. These plans are reviewed by the minister who may either give approval or require that certain aspects of the work be modified or limited.
Enforcement of Current Law
The majority of court cases that involve endangered species fall under the jurisdiction of the two federal acts discussed above. In Ontario, the provincial Endangered Species Act has been invoked on four occasions against individuals who have killed either eagles or hawks. The legislation in Ontario has yet to be invoked for the destruction of habitat. This pattern of use is similar to that in the other three provinces that have specific endangered species legislation.
The Migratory Birds Convention Act was a factor in a recent case in Ontario.(3) In this case the court refused a landowner’s application to develop his land since it infringed on the nesting site of an endangered species. The landowner wanted to split his land and build cottages on each of these portions for his children. Nesting sites of the loggerhead shrike, a species listed as endangered by COSEWIC, were found within 400 metres of this land. The statute does not mention any specific distance that must be regarded as a protected area around a nesting site. However, logging regulations require that a 400-metre circular buffer area should be left undisturbed around the nests of this species of bird. The judge found that the development proposed by the landowner would qualify as a disruptive activity similar to that of logging.
Large scale corporate development projects that jeopardize the nesting sites of endangered species of birds not covered by the Migratory Birds Convention Act have also been affected.(4) In 1987, the construction of a large resort in Saskatchewan was stopped to determine the dangers to the nesting habitat of the white pelican. No application for an environmental assessment had been made for the project even though white pelican nesting sites were found in the area slated for development. The judge found that endangered species were a rare and endangered feature of the environment that fell under the scope of the Environmental Assessment Act. The court stopped construction and ordered that a proper environmental assessment be conducted with specific attention to the protection of the white pelican nesting areas. This case shows that under certain circumstances other pieces of legislation not targeting endangered species can be used to ensure wildlife preservation.
The most controversial cases involving the Fisheries Act deal with the conflict between native fishing rights and fish population conservation. In 1990, a case before the Supreme Court of Canada dealt with this issue specifically.(5) The court found that even if there was an infringement of the Fisheries Act by a native, the infringement could be justified if an effort was made to minimize the extent of the infringement. In a more recent case in British Columbia, the court found that when an endangered species was involved conservation measures took precedence over native fishing rights.(6)
The courts have also interpreted fish habitat in its broadest sense as evidenced by a case in Nova Scotia in 1990.(7) Here the court found that an infringement on any spawning ground, nursery, rearing area, food supply area or migration route would constitute a violation of the Fisheries Act. Previously there had been some confusion as to the definition of “habitat.” The legislation does not specify if one or all five elements have to be present in order for the area to be considered habitat.
The above cases show that existing legislation can be used to protect endangered species in Canada. However, these cases also show that protection remains limited without any specific federal legislation dealing with all endangered species.
Proposed Canada Endangered Species Protection Act
On October 31, 1996, the federal government tabled legislation specifically aimed at protecting endangered species. In this legislation COSEWIC is officially recognized as the committee that will identify and assess species at risk. COSEWIC is to be composed of members that have either scientific knowledge or traditional knowledge of species. Species that are listed as either endangered or threatened are not to be killed, captured, harassed or harmed. The legislation provides protection for the residences of these species as well as any habitat that is identified as critical. Fines of up to $500,000 can be levied on corporations for each specimen of species that is harmed. Individuals face fines up to $250,000 and/or imprisonment for up to five years. Recovery plans for endangered and threatened species have to be created within one or two years respectively after the species is listed.
The proposed legislation has been criticized from all sides. Those concerned about increasing government control over private activities are concerned that the act would limit landowners’ rights to use or develop their land. Others have suggested that the act could have the unintended consequences of making landowners less likely to protect endangered species. Basing their concerns on recent experience in the United States, these critics fear that the act makes an endangered species a liability rather than an asset and gives landowners an incentive to dispose of animals on their property rather than to protect them.
Still others, including many environmentalists, believe that while the act is a step in the right direction, it does not go far enough. Many factors in the proposed legislation have been heavily criticized by this camp. The legislation as it is set out applies only to federal land, which accounts for about 40 percent of Canada’s land mass; any wildlife in the provinces remains under provincial jurisdiction. The provinces met with the federal government during the drafting of the legislation and agreed to introduce complementary legislation, but this agreement is not binding. Critics have also objected that, while COSEWIC is legally recognized, it only advises the Minister of Environment on which species should be listed. This section has been amended to require the Minister of Environment to explain any decisions that run counter to or do not follow the recommendations of COSEWIC. Ultimately, the federal cabinet still makes the final decision about which species appear on the list. Critics have also raised concerns about the type of protection habitat might receive. They fear that the interpretation of the terms “residence” and “critical habitat” might be too narrow such that habitat protection will be ineffective. These sections were also amended to include areas used seasonally, such as those for hibernating, feeding, rearing or mating, as critical habitat. It has also been noted that while the creation of recovery plans is mandatory, the implementation of these recovery plans is left to the discretion of the federal cabinet. These sections were changed to require that recovery plans be addressed by the minister 90 days after their release; however, there is still no requirement that the plans be executed. Another factor of concern is that the legislation does not require the advance review of potential effects on endangered species from development projects. Only those projects covered by the federal Environmental Assessment Act can be reviewed with respect to endangered species. Critics ultimately fear that the federal legislation, which is to set the level of protection for subsequent provincial legislation, sets the standard of endangered species protection too low.
Because of the election called for June 1997, the federal Endangered Species Act was not passed as law in Canada. Many expect that the legislation will be reintroduced in its amended form in the fall of 1997. Even in its amended form environmental groups remain split about the bill. Indeed, some groups would rather not see the bill passed in its most recent form.
1. Vulnerable: a species of special concern because of characteristics that make it particularly sensitive to human activities or natural events; threatened: a species likely to become endangered if limiting factors are not reversed; endangered: a species facing imminent extirpation or extinction; extirpated: a species no longer existing in the wild in Canada, but occurring elsewhere; extinct: a species that no longer exists.
2. 91 species are vulnerable; 30 species are threatened; 36 species are endangered; nine species are extirpated; nine species are extinct.
3. Stephens v. County of Lamark Land Division Committee (1992) 31 O.M.B.R. 441.
4. Saskatchewan (Min. of Environment) v. Redberry Development Corp. et al. (1987) 2 C.E.L.R. (N.S.) 1.
5. R. v. Sparrow  1 S.C.R. 1075.
6. R. v. Jack (1995) 16 B.C.L.R. (3d) 201.
7. R. v. Maritime Electric Co. (1990) 4 C.E.L.R. (N.S.) 289.