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Wild Animal Law of Canada
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Species at Risk Act (Canada)('SARA')(current to 01 April 2016)
Note Re Application of the Species at Risk Act (Canada)
The federal Species at Risk Act applies (1) to federally-owned and controlled lands, (2) where the provinces consent to it's application, (3) where the federal government otherwise has jurisdiction over the species (eg. Migratory Birds Convention Act) and (4) where "the laws of the province do not effectively protect the species or the residences of its individuals".
This law bears on the wildlife issues of:- PROTECTION
- HABITAT
- SALE
- OWNERSHIP/POSSESSION
The full current text of this legislation (including regulations) may be viewed at the Canada statute website.
_________________________Table of Contents
1. Overview and 'The List'
2. SARA Terminology
3. COSEWIC, Wildlife Assessments and 'Listing' of Species at Risk
4. Protective Provisions and Orders
(a) Protective Provisions
(b) Emergency Orders
(c) Exemptions
5. Species Recovery and Management Plans
(a) Recovery Strategies for Extirpated, Endangered and Threatened Species
(b) Management Plans for Species of Special Concern ______________________________________
1. Overview and 'The List'
The federal Species at Risk Act (SARA) is Canada's legislation respecting indigenous [existing in Canada for at least the last fifty years without human intervention: SARA 2(2)] wildlife 'species at risk', from a conservation perspective. It's purposes are:s.6
The purposes of this Act are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened. .SARA sub-classifies it's key concept of 'species at risk' into four discrete categories: extirpated, endangered, threatened and 'species of special concern' [SARA 2(1)] (these are explained in s..2 below). Lists of the species in each of these categories may be viewed here: SARA, Schedule 1: List of Wildlife Species at Risk (the List is divided into four parts).
Jurisdictionally, SARA operates in complement with each province's endangered species legislation (those statutes are treated in the provincial charts so see those modules, though note that BC's is merged into it's Wildlife Act), leaving most of the landmass in Canada overall in the hands of the provincial laws. However the federal SARA does apply to federally-owned and controlled lands, where the provinces consent to it's application, where the federal government otherwise has jurisdiction over the species (eg. Migratory Birds Convention Act) and where "the laws of the province do not effectively protect the species or the residences of its individuals" [SARA 34(3),58,60-61,80]. It may be that future litigation will expand the geographical jurisdiction of SARA to (simply) all of Canada without condition, much as the federal Canadian Environmental Protection Act (CEPA) has done [in contrast to the limited federal lands jurisdiction of the Canadian Environmental Assessment Act (CEAA)], but for now each instance where SARA jurisdiction is an issue must be examined case-by-case.
Extensive documentation relating to SARA activities is posted online at the Species at Risk Act Public Registry [SARA 120,123,124]. Cabinet Orders made under SARA, most of which relate to the listing or non-listing of particular species, are listed here:SARA Regulations.
Like most regulatory statutes, SARA has provisions for the appointment of enforcement officers who have typical entry, inspection, seizure and warrant (for dwelling places) and warrantless search authority [SARA 85,86].
2. SARA Terminology
Essential to understanding SARA are the definitions of key terms used in the legislation, which are explained here [SARA 2(1)]:- 'Species at Risk'
A species at risk is either "an extirpated, endangered or threatened species or a species of special concern." (all defined below):
- an 'endangered species' is "a wildlife species that is facing imminent extirpation or extinction";
- an 'extirpated species' is "a wildlife species that no longer exists in the wild in Canada, but exists elsewhere in the wild";
- a 'threatened species' is "a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction";
- a 'species of special concern' is "a wildlife species that may become a threatened or an endangered species because of a combination of biological characteristics and identified threats".
These include "sedentary living organisms on or under the continental shelf of Canada outside the exclusive economic zone". 'Sedentary organisms' are organisms that are "at the harvestable stage, either immobile on or under the seabed or is unable to move except in constant physical contact with the seabed or subsoil" [SARA 4(1,2)].
- Habitat and Critical Habitat
For non-aquatic species, 'habitat' means "the area or type of site where an individual or wildlife species naturally occurs or depends on directly or indirectly in order to carry out its life processes or formerly occurred and has the potential to be reintroduced".
For aquatic species it means "spawning grounds and nursery, rearing, food supply, migration and any other areas on which aquatic species depend directly or indirectly in order to carry out their life processes, or areas where aquatic species formerly occurred and have the potential to be reintroduced".
"Critical habitat", to which additional protections may apply means "the habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species’ critical habitat in the recovery strategy or in an action plan for the species".
- Individual
In a unique feature for a conservation law, SARA refers not only to 'species at risk' as a group, but actually to 'individuals': ie. "an individual of a wildlife species, whether living or dead, at any developmental stage and includes larvae, embryos, eggs, sperm, ...") of those species.
- Residence
Corresponding to the term 'individual' is that of 'residence'. This means "a dwelling-place, such as a den, nest or other similar area or place, that is occupied or habitually occupied by one or more individuals during all or part of their life cycles, including breeding, rearing, staging, wintering, feeding or hibernating."
3. COSEWIC, Wildlife Assessments and 'Listing' of Species at Risk
SARA establishes the "Committee on the Status of Endangered Wildlife in Canada" ('COSEWIC') [SARA 14], which is charged with, among other things, conducting assessments on any species it considers to be at risk - and classifying the species as extinct, in one of the four 'species at risk' categories (extirpated, endangered, threatened or 'of special concern'), or as not currently at risk [SARA 15]. These assessments must be based on status reports prepared either by COSEWIC or by private applicants seeking a wildlife assessment [SARA 21 (1),22(1)].
COSEWIC's assessments are then reported to the Minister [SARA 25(1)] who can then recommend to Cabinet that the List of Species at Risk (linked above) be amended to include, reclassify or delete a listing [SARA 27(1)].
Emergency requests for assessments may be filed by anyone who feels that there is "an imminent threat to the survival of a wildlife species". The Minister agrees then they must then make a recommendation to Cabinet to list the species as endangered [SARA 28(1), 29(1)].
4. Protective Provisions and Orders
(a) Protective Provisions
SARA establishes protective laws (enforced mostly by prosecution as offences under SARA 97) that apply generally to most categories of species at risk and their habitat [SARA 32(1-2), 33]:- "(n)o person shall kill, harm, harass, capture or take an individual of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species";
- "(n)o person shall possess, collect, buy, sell or trade an individual of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species, or any part or derivative of such an individual". For these purposes, 'sell' includes "to offer for sale or lease, have in possession for sale or lease or deliver for sale or lease" [SARA 2(1)];
- "(n)o person shall damage or destroy the residence of one or more individuals of a wildlife species that is listed as an endangered species or a threatened species, or that is listed as an extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada".
These protections are also extended to species that are provincially-listed as endangered and threatened, insofar as the species is on designated federal lands (I have not located any list of such designations to link to) [SARA 33].
(b) Emergency Orders
Where the Minister feels that a "species faces imminent threats to its survival or recovery", they must recommend to the Cabinet to make an emergency order for it's protection [SARA 80(1,2)]. Issues that such emergency orders may address include prohibiting activities that harm the species or it's habitat [SARA 80(4)].
(c) Exemptions
Exemptions from these protective provisions (and emergency Orders) exist for some statute-authorized public safety, health, national security activities - and for activities carried out under a SARA-issued "agreement, permit, licence, order or similar document" or SARA management plans and recovery strategies [SARA 83(1-4)]. As well, several possession exemptions applies, the most significant of which are that a list species possessed before the species was listed may continue to be possessed, aboriginal ceremonial or medicinal purposes, and possession by a "museum, zoo, educational institution, scientific society or government" [SARA 83(5)].
5. Species Recovery and Management Plans
(a) Recovery Strategies for Extirpated, Endangered and Threatened Species
Ministerial 'recovery strategies' are required for all extirpated, endangered or threatened species [SARA 37(1)]. The recovery strategy must consider the 'precautionary principle' that "if there are threats of serious or irreversible damage to the listed wildlife species, cost-effective measures to prevent the reduction or loss of the species should not be postponed for a lack of full scientific certainty" [SARA 38].
The first step towards a recovery strategy is for the Minister to determine if recovery of the species is technically and biologically feasible or not [SARA 40]. If it is found to be feasible then the recovery strategy must, among other things [SARA 41(1)]:- identify threats to the survival of the species and threats to its habitat, and a strategy to address those threats;
- identify the critical habitat of the species, including examples of activities likely to result in it's destruction;
- set out a "statement of the population and distribution objectives that will assist the recovery and survival of the species, and a general description of the research and management activities needed to meet those objectives".
If the Minister determines that recovery of the species is not feasible then they must still set out the species' needs, it's critical habitat and an explanation of why recovery is not feasible [SARA 41(2)].
(b) Management Plans for Species of Special Concern
Ministerial 'management plans' must be established for species of special concern and their habitat. The Minister has broad discretion as to what conservation measures to include in such plans [SARA 65].
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