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The Species at Risk Act

Petition: No. 121

Issue(s): Biological diversity, federal provincial relations, and science and technology

Petitioner(s): Environmental Defence Fund

Date Received: 30 June 2004

Status: Completed

Summary: This petition concerns the Species at Risk Act (SARA). The petitioner believes there are deficiencies in the Act that will hinder its effectiveness in preventing species decline. 

Federal Departments Responsible for Reply: Environment Canada, Fisheries and Oceans Canada, Parks Canada Agency

Petition

June 30, 2004

Sheila Fraser
Auditor General of Canada
240 Sparks Street
Ottawa, Ontario
K1A 0G6 Canada
Facsimile: (613) 941-8286

Dear Ms. Fraser,

I am writing to file a petition, pursuant to s. 22 of the Auditor General Act, regarding the implementation of the Species At Risk Act (SARA).

An examination of this legislation, and the associated policies relating to its implementation, is "an environmental matter in the context of sustainable development." The legislation, passed in 2002, is a centrepiece of the federal government's wildlife protection strategy.

The subject matter of this petition is the responsibility of the two competent ministers under SARA, namely Environment Canada (responsible for the Canadian Wildlife Service and Parks Canada) and the Department of Fisheries and Oceans. We are therefore addressing this petition to the Minister of Environment and the Minister of Fisheries and Oceans.

The Species At Risk Act

SARA was passed by Parliament in December 2002. The purpose of the legislation, as stated in s. 6, is

    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.

A major impetus for SARA is Canada's international obligations under the Convention on Biological Diversity, which Canada was the first industrialized country to ratify in 1992. This agreement requires member states to adopt legal protections for species at risk. The law was also precipitated by the National Accord on Species At Risk, an agreement reached by the federal, provincial and territorial governments that sets out the criteria by which species at risk legal protections should be measured.

SARA's Limited Scope

There are several deficiencies in SARA that will hobble its ability to prevent species decline. While the law protects species at risk and their residences from harm, this protection extends only to a limited part of federal jurisdiction, namely federal lands and aquatic areas. One large taxonomic group has become particularly contentious. A wide range of experts who testified on SARA, including the Canadian Bar Association and other legal experts, as well as the official report from the Senate Standing Committee that reviewed SARA, recognize that birds listed by the Migratory Birds Convention Act fall under federal jurisdiction. However, the government failed to include these species as a category of protection. As a result, they will only be protected when they are on federal lands, which comprise less than 5 percent of Canada's territory.

SARA relies on a "cooperative approach" with landowners and provincial and territorial governments. Under the law's framework, when these sectors fail to protect a species at risk, the "safety net" provides that the federal government may step in to provide effective protection. However, given the way the law is currently being interpreted by government officials, it is unlikely that the federal power to intervene will ever be employed.

At the core of the problem is an assumption by the government that the provinces and territories are fully implementing the 1996 National Accord. As noted in a CWS document outlining how the critical habitat safety net will be implemented,

    Since the Accord was endorsed, most provinces and territories have introduced, or amended, their legislation to meet commitments in the Accord (note that it is also important that any laws are implemented effectively to protect species, critical habitat, or the residences of its individuals). Consequently, the overall approach of SARA is to complement provincial and territorial legislation relating to species at risk with federal legislation and regulation, but only as and where required.1

The assumption of compliance with the Accord is demonstrably false. No provincial or territorial jurisdiction is fully implementing the Accord. Four provinces, including Canada's most biologically diverse province, British Columbia, do not even have stand-alone laws to protect species at risk.2

Perhaps the most compelling case for federal intervention is the BC spotted owl. The owl is likely the most endangered bird in Canada. Having declined by 67 percent between 1992 and 2002, just 14 adult owls were recorded last year in BC, the only province where it is found. BC is ignoring the advice of its own government scientists, who have recommended protecting the owl's habitat. However, when asked to use SARA's powers to intervene to reverse the decline of this rare species, federal Environment Minister David Anderson refused, preferring to defer to a province that has utterly failed to act in the face of its own scientific evidence of this species' imminent demise.

Habitat destruction is the number one cause of species decline. Yet SARA provides no mandatory habitat protection beyond federal lands and aquatic areas.

The lack of comprehensive coverage by SARA, and its failure to act as a backstop for the gaps in provincial laws, means that species at risk can even be legally hunted in some provinces and territories. In Alberta, for example, there is currently a legal hunt for the threatened grizzly bear.

Delays in Protecting Species

SARA was to come into effect in June 2003, however the government decided to bring into force only certain portions of the Act, delaying implementation for an additional year of virtually all sections that deal with protection of species at risk, their residences and critical habitat. Although these sections finally came into force in June 2004, three discussion papers that will act as the blueprint for bureaucrats implementing the bill provide directions that are contrary to both the spirit and letter of SARA.

Under s. 27 of SARA, "the Governor in Council, within nine months after receiving an assessment of the status of a species by COSEWIC [the scientific body recognized by SARA as providing the necessary expertise on listing]," then decides whether to accept the assessment's recommendation. If no decision is made within nine months, the recommendation is, in effect, accepted and the legal list of species at risk is amended accordingly.

This section was intended to deal with the delays and omissions to the legal list that exist in other jurisdictions that have outright "political" listing processes. Even before the COSEWIC list was updated in May 2004, an average of only 31.5 percent of COSEWIC species are listed by provinces and territories that have political listing processes.3

A separate part of the Act, s. 25(3), requires the Minister of Environment to provide his or her own response to the assessment, including timelines for action, to the extent possible.

Currently, COSEWIC meets and issues its assessments twice a year. However, the Minister has declared that he will only "receive" assessments once per year, which can be several months after a COSEWIC meeting. Causing further delays, the Minister has decided to interpret the law in such a way that he will provide his s. 25(3) response before the assessment will be "received" by the Governor in Council (GIC). There is no procedural reason given for this interpretation; the GIC decision is on a separate and longer track than the Minister's response. In fact, the Minister makes a separate recommendation to cabinet, which can occur after the s. 27 nine-month period begins.

As a result, rather than the nine months following a COSEWIC assessment that s.27 would suggest is permissible for listing decisions, the government can wait up to 20 months. To illustrate this, consider the following scenario: COSEWIC makes a decision at their May 2005 meeting, but the minister does not accept the assessment until after the November 2005 meeting. If the minister follows his past practice, he does not "receive" the assessment until the following January 2006. After the three-month period for the Minister to respond, GIC receives the assessment in April 2006, and takes nine months to reach a decision. A final decision is reached in January 2007.

In addition to this, the two competent ministers have also indicated that they will be even further extending the consultation period for 12 species that were newly re-assessed by COSEWIC. On April 23, 2004, the ministers decided to place these species in a nine-month "extended consultation" period. They also decided not to accept a COSEWIC recommendation that two species be "emergency listed" because of the immense nature of the threats these species face.

Worse, in documents prepared by Environment Canada that outline the process they intend to use for listing, the "extended consultation" appears as a permanent option, to be used at the discretion of the government. These same documents allow for a one-year exemption from the prohibitions on harming a species or its residence at the end of the listing process. There has been no legal justification given for either of these delay provisions.

Two things are important to note with regard to this aspect of SARA. First, an endangered or threatened species is generally at risk because of its very small numbers. It is these species that can be said to be in the "critical care" ward. What is at issue with listing decisions is an order not to harm the last few remaining individuals of the species. A delay of nearly two years or more before placing them on the list for protection could easily be fatal.

Second, it is important to note that under the Act, a listing decision only triggers prohibitions on harming a species or its residence. Habitat protection decisions, which could potentially have a far greater impact on landowners and commercial interests, are made through a one- to three-year additional recovery planning process that extensively involves all stakeholders. As a result, together with the listing delays, the decisions affecting the number-one cause of species decline, namely the imperilment of critical habitat, are not made until two and a half to four and a half years after a listing decision.

Even once a recovery plan is finalized, an Action Plan must be prepared to implement it. There is no mandatory timeline provision on Action Plan implementation, raising the possibility that protection of species at risk habitat can be delayed indefinitely.

Further Undermining of SARA's Residence and Habitat Provisions

The mandatory protections for species, their residence, and their critical habitat, are fairly weak, covering only federal lands and aquatic areas. However, these protections are being made even weaker by implementation policies recently outlined in CWS discussion papers.

A complete critique of the discussion papers, and how they fail to properly implement SARA, is contained in the enclosed* submissions made by Environmental Defence and four other environmental organizations.

As an illustration of the discussion papers' overly restrictive interpretation of the law, in the paper on residence protection,4 CWS states that it will simply not implement a part of the "residence" definition.

The term "residence" is defined under s. 2(1) of SARA to mean:

    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. [Emphasis added.]

The discussion paper omits "feeding" from the above-noted list of functions. The paper notes that "the concept of 'feeding' ... is captured within the above functions, as it is felt the types of feeding that are applicable to the residence concept are crucial feeding stages such as involved in breeding, rearing of young, staging, wintering, etc." There is no evidence or further justification cited for this unwarranted narrowing of the concept of "feeding" with respect to animals. In addition, this redefinition ignores the fact that plant species do not have so-called "crucial feeding stages" but rather have their "feeding" area in the place where they draw water and nutrients.

The critical habitat discussion paper deals with instances where provinces and territories do not have sufficient protection measures in place, thus necessitating federal intervention to protect and recover a species at risk. The paper provides that in such circumstances if the province or territory agrees in principle to establishing the necessary measures in an agreed upon reasonable time frame, the federal government will defer the use of the Safety Net as follows:

    "Although there is no set grace period, the general policy will be that necessary legislation and/or other tools should be in place within one year".

Aside from the fact that the Act does not in any way contemplate a grace period, it is absolutely incomprehensible why a recalcitrant province or territory should be given this time to get its legislation in order when one considers the following facts. As far back as 1996, under the National Accord, the Canadian federal, provincial and territorial governments agreed to "establish complementary legislation and programs that provide for effective protection of species at risk throughout Canada." Eight years would seem to have been more than enough time to give all jurisdictions the opportunity to put into place laws effectively protecting critical habitat. The federal government already delayed the coming into force of the most important sections of the Act until June 2004. As previously outlined, because of the way the Act is being implemented there will be a further delay of two and a half to four and half years before recovery planning is complete. With all of these delays, to suggest that the provinces and territories need an additional grace period of one year due to unforeseen time constraints is patently unreasonable.

Petition Request

Given that the purpose of SARA is to prevent the decline of species and to recover species from endangerment, I have the following questions for the Minister of Environment and the Minister of Fisheries and Oceans:

  1. The question of whether a species is at risk is a scientific one. The consequences of listing may affect landowners, but most of these consequences flow from decisions around protecting critical habitat. A listing decision only leads to a prohibition on harming the species or its residence. This being the case, why has the listing process been interpreted in such a way that there is a delay of up to 20 months between when a species is scientifically listed and when it will be legally listed? Please justify each component of the delay outlined above.
  2. Given the above-mentioned delays, why was an additional delay of nine months required for the 12 aquatic species announced in April 2004? Why does this "extended consultation" provision feature as a permanent and discretionary option in the departmental documents outlining the listing process?
  3. No province is fully implementing the 1996 National Accord, and the federal government, through its refusal to intervene to protect the BC spotted owl, has signaled a lack of willingness to intervene in cases that clearly warrant it. Given this, how will the federal government ensure that all migratory bird species at risk and listed under the Migratory Birds Convention Act will be guaranteed protection?
  4. Why has the government inserted a one-year discretionary exemption from the prohibitions on harming a species or its residence at the end of the listing process? Which section of SARA allows for this?
  5. Does the government believe that COSEWIC's scientific basis for recommending emergency listing of Cultus and Sakinaw sockeye salmon populations was sound? If not, what aspect of the scientific analysis it conducted should be questioned? If the scientific basis was sound, why did the government refuse to emergency list these species?
  6. Under the CWS discussion papers that act as a blueprint for implementation of SARA, there is a delay of between two and a half and four and a half years between the construction of the COSEWIC list and the finalization of recovery plans. Given that there are no mandatory timelines for Action Plan implementation, what will the government do to guarantee that critical habitat of all species at risk is adequately protected in a timely manner?
  7. Why does the government plan, in effect, not to implement the "feeding" part of the residence definition? Is it the opinion of the Minister that "feeding" has no distinct meaning (i.e. distinct from the other terms in the definition)?
  8. Given the time elapsed since the 1996 National Accord and the 2002 passage of SARA, as well as the above-mentioned delays in listing and recovery planning processes, why does the government plan to insert a one-year "grace period" before invoking the critical habitat safety net? Which section of SARA contemplates this?

Thank you in advance for your attention to this matter. I look forward to hearing from you.

Sincerely,

[Original signed by Rick Smith]

Rick Smith, Ph.D.
Executive Director
Environmental Defence

*[attachments not posted]


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Joint Response: Environment Canada, Fisheries and Oceans Canada, Parks Canada Agency

November 4, 2004

Dr. Rick Smith
Executive Director
Environmental Defence
615 Yonge Street, Suite 500
Toronto ON
M4Y 1Z5 

Dear Dr. Smith:

I am writing in response to your environmental petition no. 121, to the Commissioner of the Environment and Sustainable Development, regarding the implementation of the Species at Risk Act. Your petition was received in the Department on July 7, 2004.

Due to the nature of the issues raised in the petition, this is a joint response from the three competent authorities under the Act, Environment Canada, the Parks Canada Agency and Fisheries and Oceans Canada. In accordance with petition request, we have considered your questions and have responded to them in the order in which they were presented. Enclosed is our reply.

We appreciate your interest in this important matter, and trust that you will find this information useful.

Yours sincerely,

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

Stéphane Dion


Joint Response from Environment Canada, the Parks Canada Agency and Fisheries and Oceans Canada to Environmental Petition No. 121

Question 1:

The question of whether a species is at risk is a scientific one. The consequences of listing may affect landowners, but most of these consequences flow from decisions around protecting critical habitat. A listing decision only leads to a prohibition on harming the species or its residence. This being the case, why has the listing process been interpreted in such a way that there is a delay of up to 20 months between when a species is scientifically listed and when it will be legally listed? Please justify each component of the delay outlined above.

Response:

A decision on listing not only leads to prohibitions against the killing or harming of individuals of the species and their residences, it also involves mandatory recovery planning and the authority to take emergency action to protect habitat, actions that could have economic or social implications. As such, the listing process in the Species at Risk Act (SARA) allows Canadians to be consulted prior to listing decisions being made by the federal government.

The initial step of the listing process is the assessment of the species by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). Once the Committee has made its scientific assessment on the status of a wildlife species based on the best scientific knowledge, community knowledge and aboriginal traditional knowledge available, COSEWIC submits its assessment to the Minister of the Environment - subsection 25(1) of SARA. As agreed to between COSEWIC and the Minister, the Committee submits its assessment report once a year, in August. Given that COSEWIC assessment meetings are held in November and May of each year, for a species assessed in November, the Minister will receive his/her assessment report in August, which explains the initial step of nine months between the Committee's assessment and the reception of its assessment by the Minister.

Once the Minister has received the assessment from COSEWIC, he/she has 90 days in which to respond publicly on how the federal government intends to react to those assessments. During that 90-day period, the federal government must prepare the consultation documents, develop all response statements, decide whether or not some species may require special attention, ensure all products are available in both Canadian official languages, and, finally, prepare all regulatory documents for submission to the Governor in Council (GIC).

Following that initial 90 days, the GIC has nine months to decide whether or not to add the recommended species to Schedule 1 (the List of Wildlife Species at Risk) of the Act. The Minister of the Environment also has to conduct consultations with the other competent Ministers, the provinces and territories, Wildlife Management Boards and Canadians who may be impacted as a result of a listing.

Following these consultations, the Minister finalizes a Regulatory Impact Analysis Statement which, among other things, provides information on the benefits and costs of the regulatory proposal, and on the results of the consultations. The Minister also presents a Recommendation to the GIC for publication in the Canada Gazette, Part I. Publication in the Canada Gazette, Part I begins a final period of public review and comment. Following publication of the proposal in the Canada Gazette, Part I, the Minister will review and consider any comments received before making his final recommendation to the GIC on whether to list, not list or refer the species back to COSEWIC for further consideration. Finally, an order made by the GIC will be published in the Canada Gazette, Part II.

In summary, for a species assessed by COSEWIC, in November of a given year, the normal listing process can take up to 20 months; and for a species assessed in May, it can take 14 months.

Question 2:

Given the above-mentioned delays, why was an additional delay of nine months required for the 12 aquatic species announced in April 2004? Why does this "extended consultation" provision feature as a permanent and discretionary option in the departmental documents outlining the listing process?

Response:

As stated in the response to Question 1, it is the policy of the federal government to consult with those potentially affected by any regulatory measure, including those under SARA. This would include an Order to amend the List of Wildlife Species at Risk (SARA legal list) by adding wildlife species to the SARA legal list.

SARA is built on transparency and stakeholder participation in the protection and recovery of species at risk. Provincial and territorial governments, Aboriginal peoples, stakeholders and other interested Canadians are encouraged to contribute to the process of listing species for protection, under the Act.

Because species listed as "endangered" or "threatened" under SARA invoke automatic protection from harm, as well as mandatory recovery planning, consultations with affected parties are particularly important for species whose listing could have significant social or economic impacts.

Of the species that are currently under consideration for listing, it was determined that the listing of 12 aquatic species (including, among others, boccacio, cusk, interior Fraser coho salmon and several populations of Atlantic cod) could have significant and widespread effects on the activities of Aboriginal peoples, commercial and recreational fishers, farmers and others. These groups need to be clearly advised of the potential effects of a listing decision and be given the opportunity to advise the federal government of their opinions, including ways to protect and/or recover the species. As such, additional time for consultation is required to ensure that the concerns of this wide range of stakeholders are addressed. The time required will vary depending on the complexity of the issues at hand.

Although these 12 species will go through an extended consultation process, they are currently covered by conservation frameworks, and active conservation measures have already been taken for many of them. 

Question 3:

No province is fully implementing the 1996 National Accord, and the federal government, through its refusal to intervene to protect the BC spotted owl, has signaled a lack of willingness to intervene in cases that clearly warrant it. Given this, how will the federal government ensure that all migratory bird species at risk and listed under the Migratory Birds Convention Act will be guaranteed protection?

Response:

The Government of Canada takes its responsibilities under SARA very seriously, and officials have been working with the provinces and territories to ensure that the spirit and intent of the Accord for the Protection of Species at Risk are upheld. Each province has its own legislation and tools, and each is approaching the protection and recovery of species at risk in different ways. This is why the federal government is currently negotiating bilateral agreements with each province and territory that will set out a framework for how the two government jurisdictions will work together to better implement the Accord and fulfill the requirements under the Act. It is acknowledged that the conservation needs of all species will be met through co-operation among the governments.

In recent months, the Government of British Columbia has made some significant steps with regard to its commitment under the Accord. For example, there have been changes made to its Forest and Range Practices Act and it has amended its Wildlife Act to provide the Province with the tools to list species as "at risk," thereby providing them with protection.

With regard to the management and the conservation of the Northern Spotted Owl, given that the Spotted Owl is not covered under the federal Migratory Birds Convention Act, 1994 (MBCA), and occur primarily on provincial Crown land, the Government of British Columbia is the lead authority to act in conserving, managing and protecting the Spotted Owls and their habitat. The federal government is working very closely with the Government of British Columbia, and we are currently satisfied by all recent developments made by the Government of British Columbia to protect species at risk.

Section 34 of SARA provides for a safety net when a province is unwilling or unable to act. The federal government also has the ability to invoke the Emergency Order provisions in section 80 of SARA, if a species faces imminent threats to its survival or recovery. The Government of Canada will not refrain from using these authorities if and when required. However, in living up to the spirit of the Accord, the first approach, which is in accordance with the scheme in SARA, is co-operation with the provinces and territories.

Question 4:

Why has the government inserted a one-year discretionary exemption from the prohibitions on harming a species or its residence at the end of the listing process? Which section of SARA allows for this?

Response:

In accordance with section 76 of SARA, the competent Minister may recommend to the GIC that activities authorized by pre-existing permits, licences, orders or agreements not be subject to the prohibitions for a period of up to one year.

Section 76 states that, "The Governor in Council may, on the recommendation of a competent minister, by order, provide that section 32, 33, 36, 58, 60 or 61, or any regulation made under section 53, 59 or 71, does not apply, for a period of up to one year from the date of listing of a wildlife species, to agreements, permits, licences, orders or other similar documents authorizing persons to engage in an activity affecting the listed wildlife species, any part of its critical habitat or the residences of its individuals that were entered into, issued or made under another Act of Parliament before the species was listed." This section is important because it ensures that Canadians who are already authorized to undertake activities under other federal legislation are given a grace period of up to one year. This grace period can only be granted by an Order from the GIC.

Question 5:

Does the government believe that COSEWIC's scientific basis for recommending emergency listing of Cultus and Sakinaw sockeye salmon populations was sound? If not, what aspect of the scientific analysis it conducted should be questioned? If the scientific basis was sound, why did the government refuse to emergency list these species?

Response:

In December 2003, based on a status report considered by the Committee in the fall of 2002, COSEWIC requested that the Cultus and Sakinaw sockeye salmon populations be added to the SARA legal list on an emergency basis. COSEWIC's scientific basis for recommending the emergency listing of Cultus and Sakinaw sockeye salmon populations was never in question.

After due consideration of the management actions planned for these populations in 2004, and after consulting with the Minister of Fisheries and Oceans, the Minister of the Environment decided that an emergency listing of these sockeye salmon populations was not warranted, at that time. 

In 2004, specific measures to protect and rebuild these two fish populations include: severely restricting the harvest rate on Fraser River sockeye salmon species when these two populations are present, undertaking predator control (Cultus Lake) and predator monitoring (Sakinaw Lake), removing invasive weeds that act as predator habitat (Cultus Lake), monitoring fish passage and improving the fishway at Sakinaw Lake, intensive in-season monitoring of Fraser River sockeye returns, and continuing a captive brood program to further protect and enhance the populations.

Fisheries and Oceans Canada has also formed recovery teams to develop recovery strategies for Cultus and Sakinaw sockeye salmon. These teams will bring together local, technical and scientific expertise, and engage input from First Nations, stakeholders and the public to develop a broad-based recovery strategy addressing the complete threats faced by these populations.

Question 6:

Under the CWS discussion papers that act as a blueprint for implementation of SARA, there is a delay of between two and a half and four and a half years between the construction of the COSEWIC list and the finalization of recovery plans. Given that there are no mandatory timelines for Action Plan implementation, what will the government do to guarantee that critical habitat of all species at risk is adequately protected in a timely manner?

Response:

Paragraph 41(1)(g) of SARA stipulates that a recovery strategy must include "a statement of when one or more action plans in relation to the recovery strategy will be completed." We intend to implement this provision by ensuring that recovery strategies contain a clear statement on when at least one action plan will be developed.

As well, the draft Species at Risk Act - Policy on Critical Habitat [http://www.sararegistry.gc.ca/virtual_sara/files/policies/Critical%20Habitat%20Discussion%20Paper%5Fe%2Epdf] (subsection 1.4) clearly establishes an approach that seeks the earliest possible identification of critical habitat, so that protection can be put in place.

The draft policy explains that the "to the extent possible" caveat contained in subsection 41(1) of SARA is to be based solely upon a lack of data/information that is severe enough to make any identification scientifically indefensible. In other words, critical habitat shall be identified if there is defensible data to support identification; no other reasons fall into the policy allowance for not identifying critical habitat at either the Recovery Strategy or Action Plan stage. Furthermore, as the Act requires, if the identification of critical habitat is not possible at the Recovery Strategy stage, a Schedule of Studies is mandatory.

We further support the philosophy of early identification and protection of critical habitat by establishing the minimum standard for critical habitat identification as a narrative description within a defined geographic range. In other words, there is no requirement for there to be geo-spatially precise data before critical habitat can be identified and then protected - a standard which, if applied, would result in years of delay for many listed species.

We also acknowledge that Critical Habitat identification will, in many cases, be an iterative, adaptive and ongoing process. Again, even when knowledge regarding the extent of habitat for a given species is not yet complete, the approach is not to wait until "all" the habitat information/data is gathered prior to identification and protection.

It is the Government of Canada's view that these approaches demonstrate a clear intent to identify critical habitat at the earliest point at which it is truly feasible and scientifically defensible to do so.

Question 7:

Why does the government plan, in effect, not to implement the "feeding" part of the residence definition? Is it the opinion of the Minister that "feeding" has no distinct meaning (i.e. distinct from the other terms in the definition)?

Response:

The concept of "feeding," as it appears in the SARA definition of residence, is captured within the draft Species at Risk Act - Policy on Residence [http://www.sararegistry.gc.ca/virtual_sara/files/policies/residence%5Fpolicy%5Fe%2Epdf]. Types of feeding applicable to the residence concept are directly related to specific life cycle stages (such as during breeding, rearing of young, staging, wintering, etc.) when carried out in a place of dwelling.

Question 8:

Given the time elapsed since the 1996 National Accord and the 2002 passage of SARA, as well as the above-mentioned delays in listing and recovery planning processes, why does the government plan to insert a one-year "grace period" before invoking the critical habitat safety net? Which section of SARA contemplates this?

Response:

The direction given in the draft Species at Risk Act - Policy on Critical Habitat paper [http://www.sararegistry.gc.ca/virtual_sara/files/policies/Critical%20Habitat%20Discussion%20Paper%5Fe%2Epdf] is reflective that the Act's overarching philosophy is one of co-operation, consultation and stewardship; and no part of SARA contains a prescribed time limit for addressing the effective protection of critical habitat in a provincial or territorial jurisdiction.

Subsection 61(4) of SARA directs the Minister to make a recommendation "...after consultation with the appropriate provincial or territorial minister...." Such consultations, on the relatively complex question of both acknowledging and addressing effective protection of critical habitat, may require a considerable period of time. More specifically, paragraph 61(4)(a) mentions agreements under section 11 of the Act as vehicle for addressing effective protection. The engagement of a provincial or territorial jurisdiction in the details of employing a section 11 agreement, to address effective protection of critical habitat, may require considerable time, including potential stakeholder consultation.

Paragraph 61(4)(b) of the Act provides that, in addition to those items outlined in paragraph 61(4)(a), the laws of the province or territory must be examined in determining whether effective protection is in place for critical habitat. Furthermore, should effective protection require new provincial or territorial legislation, a legislative amendment, or even a new regulation under existing legislation, such a process would involve considerable time, including public and other consultations.

Section 63 acknowledges the reality that achieving effective protection in co-operation with a province or territory may entail processes lasting more than 180 days and, therefore, explicitly creates a mechanism whereby a competent Minister must regularly report to the public on steps being taken to protect critical habitat that remains unprotected.

Overall, the draft Species at Risk Act - Policy on Critical Habitat paper [http://www.sararegistry.gc.ca/virtual_sara/files/policies/Critical%20Habitat%20Discussion%20Paper%5Fe%2Epdf] proposes a general direction to deal with this issue based on the mechanisms provided in sections 61 and 63, by continuing to report every 180 days in the Public Registry, with no time limit imposed by the Act. The general policy direction stated in the draft Species at Risk Act - Policy on Critical Habitat paper [http://www.sararegistry.gc.ca/virtual_sara/files/policies/Critical%20Habitat%20Discussion%20Paper%5Fe%2Epdf] is that two cycles (i.e. one year) of this process will be employed as a general standard. Therefore, draft Species at Risk Act - Policy on Critical Habitat paper [http://www.sararegistry.gc.ca/virtual_sara/files/policies/Critical%20Habitat%20Discussion%20Paper%5Fe%2Epdf] seeks to bring a framework and timelines to the open-ended aspects of sections 61 and 63 of SARA.