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Follow-up petition on the Red Hill Valley Expressway in Hamilton, Ontario

Petition

December 14, 2004

To:

COSEWIC Secretariat
c/o Canadian Wildlife Service
Environment Canada
Ottawa, ON
K1A 0H3
Tel.: (819) 997-4991 / (819) 953-3215
Fax: (819) 994-3684
E-mail: COSEWIC/COSEPAC@ec.gc.ca
http://www.cosewic.gc.ca

Director
Species at Risk Branch
Canadian Wildlife Service Environment Canada
Ottawa, ON
K1A 0H3
SARAregistry@ec.gc.ca

Ms. Renée Bergeron
Regulatory Analyst, Legislative Services,
Program Integration Branch, Canadian Wildlife Service, Environment Canada,
Gatineau, Quebec K1A 0H3,
(819) 997-1301 (telephone), (819) 953-7177 (facsimile);

Ms. Maryse Mahy
Project Manager, SARA Legislation and Policy,
Ecological Integrity Branch, Parks Canada,
Gatineau, Quebec K1A 0M5,
(819) 953-6465 (telephone), (819) 997-4831 (facsimile);

Mr. Peter Ferguson,
Regulatory Analyst, Legislative and Regulatory Affairs,
Fisheries and Oceans Canada,
Ottawa, Ontario K1A 0E6,
(613) 990- 9325 (telephone), (613) 993-5204 (facsimile).

Office of the Auditor General of Canada
Commissioner of the Environment and Sustainable Development
Attention: Petitions
240 Sparks Street
Ottawa, Ontario K1A 0G6 sent via fax 11.23.04: (613) 941-8286
Telephone: (613) 995-3708
Sent via email: petitions@oag-bvg.gc.ca

Dear all:

This petition letter is being submitted to request that the following specific concerns be immediately addressed by all appropriate Ministers, as well as all other responsible parties, to ensure that all steps as required by the Species at Risk Act (SARA) which took effect on June 1, 2004 will be taken to protect threatened species and habitat to the maximum extent possible in the Red Hill Valley and to ensure that any development that takes place in the valley is truly development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

Specifically we requested action on the following:

We believe this is urgent and required for the following reasons:

a) It has been stated that recognizing that governments cannot act alone to ensure the conservation of biodiversity, it is a part of the strategy of the Government of Canada to invite and encourage Aboriginal peoples of Canada and all Canadians to be involved. Reflecting this policy, the Government of Canada has designed SARA to ensure the persistence of Canadian wildlife species and the habitats that support them, while embracing Canadian values of participation.

b) It has also been stated that the involvement of those affected is integral to the process, as it is to the ultimate protection of Canadian wildlife. The best way to secure the survival of species at risk and their habitats is through the active participation of all those concerned.

c) It is well known that even small-scale projects can have significant impacts on critical wildlife habitat. We believe the Red Hill Project is a project that will likely have a large and significant impact on critical wildlife habitat.

d) In addition to this another important reason to consult with Aboriginal peoples of Canada about the threat to turtle habit in the Red Hill Valley area is highlighted by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) to be as follows:

SPECIAL SIGNIFICANCE OF THE SPECIES

Turtles, in general, are important totem animals in many Aboriginal tribes. All Iroquois tribes and several Algonkin tribes recognize one or more turtles as totems (website: www.inquiry.net/outdoor/native/totem/authentic.htm). Turtle is a primary character in many Aboriginal creation stories, and turtle shells were often used as rattles in ceremony (H. Lickers, Turtle Clan, Haudenosaunee, pers. comm. 2003).

Further to the above turtles have religious significance to aboriginal tribes. Burial sites close to turtle sites respect the ability of the turtle to come to life out of the ground in the spring. A form of rebirth for the dead who are interred in a shell shaped mound. This promise of resurrection is as sacred as Christian rights for life after death. Location of Lotteridge Ossuary is a prime example. Therefore, access to turtle hunting grounds for their shells to make turtle rattles for use as religious items is important to aboriginal people.

Therefore, we are requesting that immediate steps be taken to ensure that all guidelines are followed and all actions are taken as described by the Species At Risk Act (SARA) to protect any turtles that may now be living in the Red Hill Valley and to ensure that appropriate turtle habit recovery plans are in place.

It was reported that the Minister of the Environment will take into account the assessments of these species and would consult with the Minister of Fisheries and Oceans for aquatic species, as defined in the SARA, for which the Minister of Fisheries and Oceans is competent, as well as with the Canadian public and with Wildlife Management Boards.

These species were assessed as being extirpated, endangered, threatened or of special concern at COSEWIC's May 2002, November 2002, May 2003 and May 2004 meetings. We wish to point out that the Status of Endangered Wildlife in Canada (COSEWIC) as an independent body of experts responsible for assessing and identifying species at risk.

On June 1, 2004, the prohibitions in the federal Species at Risk Act (SARA) took effect, creating an added layer of protection for species at risk in Canada. This was a government action to protect species, and to further enforce prohibitions against harming certain species and their critical habitats.

SARA provides that no one may kill, harm, harass, capture or take a listed extirpated, endangered or threatened species; or damage or destroy the residence of a listed endangered or threatened species, or a listed extirpated species if a recovery strategy has recommended that the species be reintroduced into Canada.

Contravention of SARA's prohibitions can result in maximum fines ranging from $50,000 to $1,000,000 and/or imprisonment for up to five years.

SARA also contains extensive planning components. Once a species has been listed in SARA, recovery strategies, action plans, management plans or stewardship plans must be developed to identify species' critical habitat and measures necessary for recovery. As of June 1, 2004, SARA also prohibits the destruction of any critical habitat identified in a recovery strategy or action plan. All of these plans have requirements for consultation with provincial and territorial governments, aboriginal organizations, landowners, lessees and others directly affected by the plans. They require that the best available knowledge be used to define long and short-term objectives in a recovery strategy and action plan and that it also must be consistent with Aboriginal and treaty rights and respect the authority of other federal ministers and provincial governments.

On the recommendation of the federal Minister for the Environment, Cabinet may order that SARA applies to non-federal lands in a province (or territory). The recommendation is made if the Minister is of the opinion that provincial laws do not adequately protect the species. SARA also allows an Emergency Order to be made by the Minister to extend SARA's protection to non-federal species.

Therefore, we believe it would be appropriate for the Minister for the Environment to intervene on an emergency basis to ensure that turtles that are a highly religious symbol to aboriginal people are protected and their habit is not destroyed in the Red Hill Valley Expressway construction area.

SARA is a result of the implementation of the Canadian Biodiversity Strategy, which is in response to the United Nations Convention on Biological Diversity. The Act provides federal legislation to prevent wildlife species from becoming extinct and to provide for their recovery.

Under SARA, an emergency order may be made by the federal Cabinet if recommended by the Minister, who makes such a recommendation if he/she is of the opinion that the species faces imminent threats to its survival or recovery.

We believe turtles face imminent threats to their survival and/or recovery in the Red Hill Valley, and the needed attention to this has not occurred, and that the responsibilities of the City of Hamilton have either being unintentionally overlooked or intentionally bypassed to expedite the work, and that the higher levels of authority responsible need to act quickly to address this.

Under Canadian law, the protection of species and their habitats is the shared responsibility of the federal, provincial, and territorial governments. The expansive federal authority introduced by the Act, and the assignment of responsibility for the protection of listed species to three Ministers (Environment, Fisheries and Oceans, and Heritage)

SARA is the result of an international commitment made by Canada, at the Convention for Biological Diversity over a decade ago, to develop a national endangered species act in response to a recognized need in the overall Canadian biodiversity conservation community for a single legislative umbrella, under which all the various parties pursuing species recovery could operate and focus their efforts.

The legislation ensures that species are assessed under a rigorous and independent scientific process that operates at arm's length from the federal government. It also requires the development of recovery action plans for species found to be most at risk, and recognizes the essential role of Aboriginal peoples in the conservation of wildlife by requiring the establishment of a National Aboriginal Council on Species at Risk.

The Minister of the Environment is responsible for species on federal lands, with the understanding that the provinces and territories will undertake actions and enforce prohibitions for the conservation of species at risk under their jurisdiction. Since many species at risk are the responsibility of the provinces and territories, SARA explicitly encourages and provides for cooperative stewardship approaches to habitat protection. This is also true among federal agencies. The Act requires the coordination of various pieces of existing federal legislation that apply across several agencies and, as much as possible, must also integrate with provincial and territorial legislation and programs.

SARA also provides a Canada-wide regulatory safety net which may be applied should all the collective measures put in place not result in effective protection of critical habitat. Under this safety net, Cabinet has the power to take emergency action to protect critical habitat when stewardship arrangements cannot be made. For those situations where the application of land use restrictions are deemed to have resulted in an extraordinary loss to a landowner, SARA also includes enabling provisions for compensation.

Species at Risk Act enforcement measures allows for inspections to take place and we believe, for the reasons described in this letter, that inspections should to take place at this time.

Also, in the summary of Existing Ontario Ministry of Natural Resources Habitat Management Guidelines APPENDIX R states: "Habitat requirements for some of species are very specific (e.g. area sensitive species) while requirements of others may be more general. This information can be applied equally well in the municipal planning process."

We believe that although much information was available to the City of Hamilton on the subject of turtle habitat that information was not applied well in their Red Hill Creek Project planning process and since the City has stated that all impacts will be mitigated we believe a closer examination of turtle habit concerns is warranted.

We wish to point out that to help Canadians protect and recover species at risk, the Habitat Stewardship Program (HSP) has been established. The HSP allocates up to $10 million a year to projects that conserve and protect species at risk and their habitats. To assist federal departments in meeting the requirements set out under the Act, the Interdepartmental Recovery Fund (IRF) was created in 2001. The aim of this fund is to contribute to the recovery of extirpated, endangered and threatened species by supporting high-priority recovery activities.

The Species at Risk Act promotes the protection and recovery of species at risk by engaging Canadians in stewardship programs and by giving landowners, land users and other stakeholders the opportunity to participate in the recovery process. Stewardship actions include the wide range of voluntary actions Canadians are taking to monitor species at risk and their habitats, recovery actions to improve the status of species at risk, and direct actions to protect species at risk.

At the time of listing, automatic prohibitions on the harming of individuals and their residences come into effect, thus providing immediate and direct protection. Subsequently, recovery strategies, action plans and management plans must be developed to promote and manage the recovery of the species. The implementation of these plans may result in recommendations for further regulatory action for protection of the species or may draw on the provisions of other acts of Parliament, such as the Fisheries Act, to provide required protection.

Conclusion

Therefore, considering the above, and considering that the City of Hamilton has stated that it will mitigate all adverse affects of the construction of the Red Hill Expressway construction project, we request an immediate investigation into the activities presently taking place in the valley and how those activities may be further endangering habit and all species considered at risk or endangered that may occupy the valley. We request this investigation be undertaken to ensure there is no recklessness or wilful blindness to the Species and Risk Act and any of its obligations or requirements.

Respectfully submitted,

[Original signed by Wilamina McGrimmond]

Wilamina McGrimmond
104 Belmont Ave.,
Hamilton, Ontario
L8L 7M1

[Original signed by Glen Atwell]

Glen Atwell
89 Balmoral Ave S
Hamilton Ontario
L8M 3K1

[Original signed by Bob Hicks]

Bob Hicks
4467 Hawthorne Drive
Burlington, Ontario
L7L 1G7

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Minister's Response: Environment Canada

April 20, 2005

Ms. Wilamina McGrimmond
104 Belmont Avenue
Hamilton, Ontario
L8L 7M1

Mr. Glen Atwell
89 Balmoral Avenue South
Hamilton, Ontario
L8M 3K1

Mr. Bob Hicks
4467 Hawthorne Drive
Burlington, Ontario
L7L 1G7

Dear Ms. McGrimmond and Messrs. Atwell and Hicks:

I am writing to provide Environment Canada's response to your environmental petition no. 82D, to the Commissioner of the Environment and Sustainable Development, concerning the protection of threatened species and habitat in the Red Hill Valley. Your petition was received in the Department on December 23, 2004.

Please find enclosed Environment Canada's detailed response which will address the issues that fall within the Department's mandate.

I trust that you will find this information useful.

Yours sincerely,

[Original signed by Stéphane Dion, Minister of the Environment]

Stéphane Dion

ENVIRONMENT CANADA
RESPONSE TO ENVIRONMENTAL PETITION
NO. 82D
UNDER THE AUDITOR GENERAL ACT

SUBMITTED BY
Ms. Wilamina McGrimmond
Mr. Glen Atwell
Mr. Bob Hicks

1.  Legislation covering the protection of the Spiny Softshell Turtle (Apalone spinifera); and the Spotted Turtle (Clemmys guttata), and the Wood Turtle (Glyptemys insculpta) and the Northern Map Turtle (Graptemys geographica) and as well as their habitat needs to be closely examined to determine if the destruction of wildlife habitat in the Red Hill Valley is in conflict with the legislation.

Protection

Four species of turtles were specifically named in the petition: Spiny Softshell Turtle, Spotted Turtle, Wood Turtle and Northern Map Turtle.

Currently, the Spiny Softshell Turtle (threatened) and Northern Map Turtle (special concern) are protected under the Species at Risk Act (SARA) as they are found on the List of Wildlife Species at Risk (Schedule 1 of SARA, known as the "legal list"). Both the Spiny Softshell Turtle and Northern Map Turtle were added to the legal list in January 2005.

The Spotted Turtle has been assessed by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) as endangered and is undergoing consultation for possible addition to the SARA legal list in the summer of 2005. In 1996, the Wood Turtle was assessed as being of special concern by COSEWIC and is found on Schedule 3 of SARA. Schedule 3 is a listing of species of special concern which were not reassessed before the proclamation of SARA and which are to be reassessed by COSEWIC. It is anticipated that the Wood Turtle will be reassessed by May 2006.

Protection for turtle species at risk in Ontario is the shared responsibility of the Province of Ontario and the Government of Canada. Pursuant to Section 34 of SARA, the general prohibitions of the Act do not apply to species that are not migratory birds protected by the Migratory Birds Convention Act, 1994 (MBCA, 1994), aquatic species, or on federal lands. As turtle species do not fit these criteria and the Red Hill Valley is not federal land, the general prohibitions would not apply should individuals of the species in question be found in the Red Hill Valley. In most cases, provincial legislation provides protection to endangered and threatened species at risk under Ontario's Endangered Species Act and/or under related legislation such as its Fish and Wildlife Conservation Act or Planning Act. However, if the federal Minister of the Environment is of the opinion that the laws of a province do not effectively protect the species or residences of its individuals, an Order-in-Council that applies the prohibitions in sections 32 and/or 33 of SARA on lands in a province may be made by the Governor in Council on the recommendation of the Minister (s. 34(2)), following consultation with the province. If an Order-in-Council is issued, the federal Minister of the Environment would be in a position to take steps under SARA to protect these species, and their residences.

Critical habitat has not yet been identified for the Spiny Softshell Turtle. Therefore, sections 58(4) and 61(2) of SARA, which are applicable to threatened and endangered species and which provide the "safety net" provision to protect critical habitat, cannot be applied yet to the Spiny Softshell Turtle.

The Northern Map Turtle is a species of special concern and, therefore, the general prohibitions in SARA do not apply in this case. Protection is afforded through preventative actions outlined in species management plans.

Recovery

Sections 37 to 55 of SARA require the preparation of a recovery strategy and action plan for all extirpated, endangered and threatened species found on the SARA legal list. Landowners and other parties considered by the Minister to be directly affected must, to the extent possible, be consulted when preparing a recovery strategy or action plan. Recovery strategies and action plans must also be prepared in cooperation with Aboriginal organizations, wildlife management boards, provincial and territorial governments, other federal departments and any other person or organization that the Minister considers appropriate. There are strict, legislated timelines in place for recovery strategy development to which government departments must adhere.

Before SARA was promulgated, recovery planning and recovery activities for the Spiny Softshell Turtle and several other species were well under way. A specific draft recovery strategy has been prepared for the Spiny Softshell Turtle and it is also included as one of several species being addressed in the Walpole Island Ecosystem Recovery Strategy. Furthermore, the Sydenham River, Ausable River, Thames River and Essex Region aquatic ecosystem recovery strategies being led by the Department of Fisheries and Oceans include both the Spiny Softshell Turtle and Northern Map Turtle. Actions taken in support of recovering these ecosystems will also positively affect several reptile, fish and mussel species. The Spiny Softshell Turtle recovery strategy will be posted on the SARA Public Registry (http://www.sararegistry.gc.ca) for public comment no later than January 2009.

Sections 65 to 72 of SARA require the preparation of a management plan for all species of special concern included on the SARA legal list. A management plan for the Northern Map Turtle will be posted on the SARA Public Registry for public comment no later than January 2010. In the meantime, however, this species is also included in recovery activities of the ecosystem recovery strategies mentioned above.

Species Occurrence in the Red Hill Valley

Recent correspondence with the chair of the Spiny Softshell Turtle Recovery Team, the Ontario Natural Heritage Information Centre and the Hamilton Field Naturalists, revealed that there are no recent records of Spiny Softshell Turtle or Northern Map Turtle in the Red Hill Valley or adjacent lands. The only confirmed records of these species in the Hamilton Area in recent years have been in Cootes Paradise Marsh and Hamilton Harbour.

2.  Aboriginal peoples of Canada and the general public are not being consulted concerning the destruction of turtle habitat as required by the federal Species at Risk Act (SARA).

Environment Canada is committed to consulting affected parties on various issues while implementing SARA. With respect to Aboriginal people, consultation is also an integral part of implementing the federal government's policy initiatives such as Gathering Strength: Canada's Aboriginal Action Plan, which calls for the development of a new relationship between government and Aboriginal people, and explicitly identifies developing effective working relationships with Aboriginal organizations and communities as a way to build a new relationship.

Consultations and cooperation with Aboriginal people are required under various provisions of SARA. One such instance is during the development of recovery strategies (s. 39(1)), which would identify, to the extent possible, a species critical habitat and example of activities that would likely result in its destruction.

Currently, the Spiny Softshell Turtle is the only turtle species mentioned in the petition that is covered by the general prohibitions of SARA (s. 32 and 33). However, since this species has not been found in recent years in the Red Hill Creek Valley, there has been no apparent necessity for consultation with local stakeholders at this time. In other areas of the province, where turtle species at risk populations and their habitat extend into Aboriginal and private lands, cooperation with Aboriginal people and consultation with other parties considered to be directly affected and the general public will be an important part of the recovery process.

3.  The petitioners request that immediate steps be taken to ensure that all guidelines are followed and all actions are taken as described by the Species at Risk Act (SARA) to protect any turtles that may now be living in the Red Hill Valley and to ensure that appropriate turtle habitat recovery plans are in place.

Species at risk under provincial jurisdiction, such as turtles, are protected under various provincial Acts, regulations and policies. Pursuant to Sections 32, 33 and 34 of SARA, prohibitions under SARA would not come into effect until an Order-in-Council has been passed which would apply prohibitions to protect species and residences on private or provincial Crown lands. These prohibitions apply to endangered and threatened species, and extirpated species that have been recommended for reintroduction in Canada in a recovery strategy, but not to species of special concern. There are no guidelines under SARA that would provide for the protection of turtles.

SARA requires recovery strategies (plans) to be prepared for extirpated, endangered and threatened species within certain time limits as indicated in the Act. SARA also requires that management plans be prepared for species of special concern. National strategies and plans will be prepared for the turtle species at risk mentioned in this petition within the prescribed time limits. These turtle species are also included in other ecosystem recovery plans being prepared for Walpole Island, the Sydenham River, the Ausable River, and the Thames River, and in the Essex Region aquatic ecosystem recovery strategy.

4.  The petitioners believe it would be appropriate for the Minister of the Environment to intervene on an emergency basis to ensure that turtles that are a highly religious symbol to Aboriginal people are protected and their habitat is not destroyed in the Red Hill Valley Expressway construction area.

On the recommendation of the federal Minister of the Environment, the Governor in Council may make an emergency order to protect a listed wildlife species if the Minister is of the opinion that the species faces imminent threats to its survival or recovery. Currently, the Spiny Softshell Turtle (threatened) and Northern Map Turtle (special concern) are protected under SARA as they are found on the list of Wildlife Species at Risk (Schedule 1 of SARA, known as the "legal list"). Recent correspondence with the Chair of the Spiny Softshell Turtle Recovery Team, the Ontario Natural Heritage Information Centre and the Hamilton Field Naturalists, revealed that there are no recent records of Spiny Softshell Turtle or Northern Map Turtle in the Red Hill Valley or adjacent lands. Therefore, there is no evidence to warrant the intervention by the Minister on an emergency basis. Information provided in the petition does not demonstrate that there are turtle species in the Red Hill Valley facing imminent threats to their survival.

5.  The petitioners request an immediate investigation into the activities presently taking place in the valley and how those activities may be further endangering habitat and all species considered at risk or endangered that may occupy the valley.

An official request for an investigation to be considered under SARA must include the required information as set out in section 93(2) of the Act. The required elements include a statement of the nature of the alleged offence and a summary of the evidence supporting the allegations. In this respect, the petition does not provide the required information to undertake an investigation under SARA.

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Minister's Response: Fisheries and Oceans Canada

April 12, 2005

Mr. Bob Hicks
4467 Hawthorne Drive
Burlington, Ontario
L7L 1G7

Dear Mr. Hicks:

I am writing in response to the petition filed by you, Ms. McGrimmond, and Mr. Atwell, with the Commissioner of the Environment and Sustainable Development of Canada. Pursuant to Section 22 of the Auditor General Act, your petition was forwarded to the Minister of Environment, and the Minister of Fisheries and Oceans as environmental petition number 82D on December 23, 2004.

I understand from your petition that you are asking for action to protect four freshwater turtle species, under the federal Species at Risk Act (SARA), in the Red Hill Valley, and to consult with Aboriginal peoples of Canada, and the general public in that regard. In particular, you ask that your concerns be considered in relation to the Red Hill Creek Expressway project being undertaken by the City of Hamilton.

Your petition has been carefully reviewed by Fisheries and Oceans Canada (DFO). I am pleased to provide you with the following response, addressing only those matters falling within the mandate of DFO. My colleague, the Minister of the Environment, as the federal Minister responsible for non-marine turtle species under the SARA, will be providing you with a separate response with respect to those matters falling within his mandate.

DFO has reviewed your request, in relation to its responsibilities pursuant to the federal SARA, and the Fisheries Act Subsection 35(2) authorization, issued by DFO in 2003 to the City of Hamilton. This authorization provides for the harmful alteration, disruption or destruction of fish habitat associated with the re-location of Red Hill Creek. As the works or undertakings to which the Fisheries Act authorization applies are not on federal lands, but in lands of a province, DFO currently understands from Environment Canada that there is no evidence to warrant the application of the `safety net' provisions of the SARA (for example, Section 33), in relation to your requests to protect these non-marine turtle species. Therefore, DFO is not in a position to take further action.

On the matter of consultation with Aboriginal people and the general public in respect to non-marine turtle species to which the SARA applies, I will defer to the reply of my colleague, the Minister of the Environment, as the responsible federal Minister for such turtles.

Thank you for your interest in Canada's environment and for bringing your concerns to my attention. I trust this letter helps to clarify DFO's position in this important matter.

Yours truly,

[Original signed by Geoff Regan, Minister of Fisheries and Oceans]

Geoff Regan