Legislation dedicated to the protection of species-at-risk is relatively new to Canada. Our federal Species-At-Risk Act (SARA), only came into force in 2002. Recognizing the need for complimentary legislation several provinces established their own, some after, like Ontario’s 2007 Endangered Species Act, and others before, like Nova Scotia’s 1999 Endangered Species Act, among the first in Canada. But, as the decades rolled by, these various acts have proven flimsy, while federal and provincial governments alike leave them unenforced.
EcoJustice is a registered Canadian charity dedicated to upholding environmental law, and species-at-risk have kept them busy. Their 2012 report entitled Failure to Protect, outlines the flaws of each individual act and provides every province with a letter grade, based on their species-at-risk performance. Scoring F were British Columbia, Alberta and Saskatchewan, supporting no species-at-risk legislation at all. The highest score, C+, went to Ontario, with Nova Scotia placing second nationally with a C. SARA scored C-.
“The analysis in this report paints a clear, though unsettling, picture,” it concluded. “Across the board, Canada’s federal, provincial and territorial governments are doing an abysmal job protecting our at-risk species and the habitat they need to survive and recover…No jurisdiction should be satisfied with its performance.”
These laws are weak because, in some cases, their protections are voluntary – at the discretion of ministers or governmental departments who routinely prioritize economic concerns over those of conservation.
“Biodiversity is almost always sacrificed when there’s money to be made, unfortunately,” said EcoJustice staff lawyer James Gunvaldsen Klaassen. “Complaints that the protection of species interferes with industry come up in every province. It’s very difficult to make the case for protecting a small ecological niche if there are powerful industry forces aligned against it.”
There are also widespread limitations in the acts themselves, even when upheld. While it is illegal to bring harm to a species listed as threatened or endangered under SARA, this commonsense provision only applies on federal land. On private or provincial land, federally listed species are often fair game.
The final and most pervasive issue with these acts isn’t their wording or loopholes, but enforcement. Ontario’s Endangered Species Act has the strongest, clearest and tightest provisions of any comparable legislation in Canada, even North America, yet EcoJustice took their Minister of Natural Resources and Forestry to court in fall of 2017 for failing to produce long overdue recovery strategies – a mandatory document outlining a species’ recovery – for 37 listed species. This legal action forced the minister to settle, committing to quarterly updates on remediation efforts. This, sadly, is only one example of many.
“Ecojustice has a very long history of these kinds of cases, almost exclusively federal,” said EcoJustice staff lawyer Sarah McDonald. “In 2010, EcoJustice sued the federal government over its failure to identify critical habitat in the recovery strategy of an endangered shore bird, the Piping plover. We settled the case, and part of the settlement was a requirement that the government address the backlog on recovery planning for over 50 endangered species. However, the federal government continued to be delinquent in its statutory obligations towards endangered and threatened species. As a result, four years later (2014), Ecojustice lawyers brought a successful case forward challenging the government’s failure to produce recovery strategies for these species.”
In 2018, EcoJustice opened an office in Halifax, intent on addressing the widespread species-at-risk shortcomings across the Maritimes. McDonald joined this Maritime team, as did Klaassen, and were together preparing in partnership with the Ecology Action Centre to bring legal action against Nova Scotia’s Department of Lands and Forestry for failing to uphold the province’s Endangered Species Act. The local law firm Juniper Law, however, beat them to it.
Is C a Passing Grade?
Nova Scotia’s Endangered Species Act covers the basics. When a species is listed as either threatened or endangered, a recovery team of experts must be established and dedicated to its conservation, a recovery plan must be drawn up with detailed actions and objectives, and this plan must identify the species’ core habitat (land necessary for its recovery, the protection of which is at the minister’s discretion after it’s identified).
Since this Act was established, however, 34 listed species have not received all three of these legal necessities. Many go without active recovery teams, recovery strategies, and to date no single species has had its core habitat identified. These shortcomings have been the subject of considerable criticism, in reports by the East Coast Environmental Law Association in 2015 and the province’s auditor general the following year, but until 2019 no legal action had yet been taken.
Jamie Simpson, lawyer and founder of Juniper Law, has followed this issue sometime now, having co-authored the 2015 report from East Coast Environmental Law while serving as their executive director. He also teaches environmental law at Dalhousie University and routinely brings up the unlawful lethargy of the Department of Lands and Forestry with his students.
“I’d stand up in front of my class, give a lecture on species-at-risk and how the provincial government isn’t meeting its legal obligations under the Endangered Species Act, and inevitably a student would ask why no one’s challenged the government on this,” he said. “Eventually I realized I couldn’t stand up one more time and hear that question. I figured I had to give it a try.”
Every lawyer needs a client, and Simpson’s are the Federation of Nova Scotia Naturalists, the Blomidon Naturalists Society and the Halifax Field Naturalists, their legal action against the Department of Lands and Forestry filed on January 24th, 2019. This is the first time Nova Scotia’s Endangered Species Act has been the subject of legal action. EcoJustice has since requested intervener status, which is, to join the litigation. As of press time, the next scheduled court dates were April 16th-17th.
“We’re hoping that, if the court orders the government to get up to date on its current legal obligations, it will be sufficient to essentially shift the culture of the department to one where they are on top of things, creating the necessary infrastructure to make sure they’re doing what they’re legally required to do,” said Simpson.
“We’re probably like many naturalist clubs in that, when we were founded, there were no activists in the group, and I think that has changed.”
So said retired population ecologist Soren Bondrup-Nielsen, a veteran of Acadia University’s biology department and current president of the Blomidon Naturalists Society. While naturalists are a traditionally quiet bunch, Bondrup-Neilsen has been advocating a culture change for sometime now, encouraging his fellow lovers of nature to step beyond their comfort zone and share their uniquely relevant perspective.
“We naturalists are the ones who, when we’re outside, can see things and interpret them, like clearcutting, soil erosion, the works. If we don’t try to educate people and tell them what’s going on here, who will?”
While the Blomidon Naturalists Society voted unanimously in favour of joining the legal action (there was one abstention), Bondrup-Neilsen is only too aware of the Endangered Species Act’s shortcomings. Their legal action with Juniper Law focuses on six species-at-risk in particular, chosen to embody the issues facing all 34. These are the Eastern moose, Ram’s-Head ladyslipper, Black ash, Wood turtle, Canada warbler and Eastern Wood pewee, all of whom are charismatic. While this makes sense from the view of public relations, Bondrup-Nielsen believes it to be symptomatic of the overall problem.
“People need an understanding that all these species are important,” he said.
He has studied everything from moose to beetles and explains that every species has its part to play. The more biologically diverse a particular region is, the stronger it becomes, producing the necessities of life more readily such as air and water, and being more resilient in the face of adversity. Species which are naturally rare in Nova Scotia, such as the Ram’s-Head ladyslipper, might have a larger part to play as the world warms. What’s more, Nova Scotian ecology depends more on insects than moose. In the course of his career, he has encountered insects in the province previously unknown to science, and is alarmed at the lack of focused research dedicated to Nova Scotian wilderness, leaving enormous gaps in our understanding of the species in our care. We could be destroying species, such as beetles, we didn’t know existed, he said, or creating more species-at-risk while distracted with those already listed.
“The Endangered Species Act is reactive legislation,” he said. “Once a species becomes endangered, then we’ll do something. Well, my god, why don’t we do something beforehand so we don’t get to that stage?”
Among the reforms he’d like to see to the Endangered Species Act, perhaps improving its C grade in the process, would be for industry to pay for thorough surveys in regions they intend to exploit, and to better track and prevent the declines of species not yet at-risk.
Endangered in the Maritimes
Prince Edward Island doesn’t have its own Endangered Species Act. Species-at-risk provisions are instead included under their Wildlife Conservation Act, which governs hunting. This legislation scores a D from EcoJustice in part because it’s extremely vague.
“The legislation is very simply written,” said Kate MacQuarrie, director of PEI’s Forests, Fish and Wildlife division. “That simplicity presents a problem.”
The Wildlife Conservation Act states bluntly that any species listed as endangered, for example, will have its habitat protected. It’s unclear how this habitat is to be identified or what will happen if it’s found on private land. How will that protection look, and how could this Act’s loose guidelines be interpreted? Without answers to these difficult questions, species-at-risk provisions under the Wilderness Conservation Act were dead on arrival. To date, no single species has been listed under it, and the Minister’s Advisory Committee, established under the Act to recommend species for protection, dissolved years ago.
“Does the legislation need to be fixed?” asked MacQuarrie. “In my opinion, yes it does, and it’s just a matter of when.”
While Islanders and provincial conservation organizations, such as Nature PEI, have pushed for reform, there has been no government effort to repair this Act or to establish stand-alone legislation for species-at-risk. In its absence MacQuarrie and her division has been doing their best with the limited legal mechanisms at their disposal, like SARA, the Migratory Birds Convention Act and the provincial Environmental Protection Act, allowing them to safeguard nests, put staff and volunteers on sensitive beaches, and issue certain permits selectively, but the lack of specific provincial legislation is still felt.
“Ecojustice opened its office in Halifax so we could focus on the Atlantic provinces,” said staff lawyer James Gunvaldsen Klaassen. “PEI is certainly on our radar, though we’ve chosen Nova Scotia as our first target in the Maritimes.”
New Brunswick’s Endangered Species Act seems likewise stalled. Reworked in 2013, the present legislation hasn’t been given a letter grade by EcoJustice, but in the considered opinion of staff lawyer Sarah McDonald, it resides on the low end of the scale.
“Almost nothing has been done to implement [New Brunswick’s] Species at Risk Act since it came into force. In fact, to my knowledge, the province has not even appointed a single member to its Committee on the Status of Species at Risk, which is the committee charged with assessing species to determine if they should be listed under the Act.”
Canada’s Natural Heritage
The decline of Canadian biodiversity has no single cause. The loss of habitat to logging, mining, oil and gas extraction, overhunting or trapping, climate change and others all play their part. Species-at-risk legislation was intended from the beginning to track these problems, mitigate their impacts or prevent them altogether, but as these various acts expose their weaknesses or go unenforced, we see Canada’s natural heritage teetering.
The World Wildlife Fund’s 2017 Living Planet Report concluded that a full 50 per cent of Canada’s monitored wildlife populations were in decline between 1970-2014, and declining populations had done so an average of 83 per cent.
“At the federal level in Canada, the primary legal mechanism for protection of imperiled species is the Species-at-Risk Act, or SARA,” the report points out. “SARA was adopted in 2002, but our analysis has shown that since that time, listed populations have continued to decline by an average of 28 per cent. Our results suggest that the rate of decline of these at-risk species may have actually increased despite protections afforded by SARA. We need to take steps now to make sure that our protected species are exactly that: protected.”
The conclusion of this and other national conservation organizations is that Canada’s species-at-risk legislation is in dire need of strengthening and enforcement, an effort which seems finally to have arrived in the Maritimes.
Zack Metcalfe is a freelance journalist, author, and writer active across the Maritimes. This article was originally published with Rural Delivery Magazine.