|
BP-417E
SPECIES
AT RISK IN CANADA
Prepared by:
Jean-Luc Bourdages
Science and Technology Division
May 1996
TABLE
OF CONTENTS
INTRODUCTION
OVERVIEW
OF BIODIVERSITY
A.
Biodiversity
B.
Consequences of the Loss of Biodiversity in Canada
SPECIES
AT RISK IN CANADA
PROTECTING
SPECIES AT RISK IN CANADA
A.
The Federal Level
1.
Existing Legislation
2.
Recovery of Nationally Endangered Wildlife Committee
B.
The Provincial Level
LEGISLATION
ON SPECIES AT RISK IN OTHER COUNTRIES
A.
The U.S. Endangered Species Act, 1973
1.
Various Aspects of the Act
2.
Review of the Act
B.
Australias Commonwealths Endangered Species Protection
Act, 1992
C.
The European Unions "Habitats" Directive
CANADIAN
FEDERAL INITIATIVES TO PROTECT SPECIES AT RISK
A.
Parliamentary Initiatives
B.
Environment Canadas Legislative Proposal
CONCLUSION
SPECIES AT RISK IN CANADA
INTRODUCTION
As early as 1980, the International
Union for Conservation of Nature and Natural Resources (IUCN), along with
the United Nations Environment Programme (UNEP) and the World Wildlife
Fund (WWF), developed a world strategy for the conservation of living
resources in order to further sustainable development.(1)
This strategy was based on three principal objectives:
A few years later, the World
Commission on Environment and Development, better known as the Brundtland
Commission, further highlighted the concept of sustainable development
in a report(2) that will
undoubtedly be seen as the trigger in the international communitys
collective focus on increased protection of the environment and natural
resources. Although many countries supported the idea of sustainable development
and were formulating policies for its implementation, the tendency was
to pay little attention to the conservation of species and their habitats.
The Brundtland Report, however, like the World Conservation Strategy in
1980, established that the protection of species and ecosytems is indispensable
to the achievement of sustainable development.
In the years following the
publication of the Brundtland report, the United Nations Organization
held an important conference (UNCED) in Rio de Janeiro, Brazil, on the
environment and development; the leaders of 105 countries took part. In
addition to the development of Agenda 21 and the adoption of the Framework
Convention for Climatic Change, the Earth Summit gave top priority in
its discussions to the conservation of biodiversity and adopted the international
Convention on Biological Diversity. One year after the Rio Summit, 168
countries had signed the Convention, and 114 countries, Canada being the
first, have since ratified it. Under the Convention, countries made a
commitment to protect threatened species and habitats. Article 8k states
that signatory countries shall "develop or maintain necessary legislation
and/or other regulatory provisions for the protection of threatened species
and populations."(3)
Canada has for a long time
been concerned with the protection of its natural and historic heritage.
As an example, 100 years ago it had laid the groundwork for a national
system of parks and natural sites. These protected lands have ensured
the conservation of the countrys most beautiful landscapes for past,
present, and future generations. Like a number of other statutes
the Fisheries Act, the Migratory Birds Convention Act, the
Canadian Wildlife Act, the Wild Animal and Plant Protection
and Regulation of International and Interprovincial Trade Act
the National Parks Act also protects certain species that are at
risk and their habitats. All these statutes play an important role with
regard to the conservation of natural ecosystems and the wildlife they
support, but their existence has not stopped the disappearance of species
once found in Canada. The commitment Canada made in 1992, after the Rio
Summit, was therefore justified and should make possible the action necessary
to ensure more effective protection of species and ecosystems now at risk.
This paper first gives a
general picture of the protection of species at risk in Canada and in
other countries, primarily through an overview of the general concept
of biodiversity and its importance internationally and in Canada. This
is followed by an examination of the consequences of the loss of biodiversity
in this country. We will then present the different approaches and actions
taken in Canada, both federally and provincially, to ensure the conservation
and recovery of species at risk. Also examined is the experience acquired
in this regard in certain countries, particularly the United States, which,
since 1973, has had a specific statute for the protection of species at
risk. Finally, we will look at the most recent federal bills on this topic.
OVERVIEW
OF BIODIVERSITY
A.
Biodiversity
The term biodiversity
or biological diversity can be defined as the variety of life and
its processes. It includes the variety of living organisms, their genetic
differences, the communities and ecosystems in which they are found, and
the ecological and evolutionary processes enabling them to function, to
change, and to adapt.(4)
More simply, biodiversity corresponds to the totality of genes, species
and ecosystems that make up all the lifeforms found on earth. Each level
of biological organization is important, and all are interrelated. Genes
are the elements identifying each of the species living on earth; all
the interrelated species in a given environment together form an ecosystem.
Species, the level of biological organization of particular concern to
us in this paper, can be defined as the variety of lifeforms on earth,
represented by each of the species. Scientists, then, speak of specific
diversity rather than genetic diversity.
The diversity of lifeforms
on earth constitutes the basis of the human environment and is the reason
the planet is habitable. It is these lifeforms that maintain the ecological
functions essential to humanitys survival. Thus, the interaction
of a number of species makes possible the production of oxygen, the conversion
of energy from the sun into carbohydrates and protein, the purification
of drinking water, and moderation of the climate.
These lifeforms also produce
the soil that supports crop production and purify the air.(5)
Biological diversity also contributes to the well-being of humanity and
the satisfaction of its needs. Most food comes from natural sources; of
the 80,000 edible plants in the world, approximately 20 species, such
as rice, corn and wheat, meet 90% of the worlds needs.(6)
Although people use only a few thousand plants, they count on wild species
to improve their crop production. Many medicines also come from wild species.
In North America, half of all drugs prescribed come from natural sources;
for example, the active ingredient of aspirin was discovered in the White
Willow.(7) Similarly, the
Rosy Periwinkle is indispensable in curing certain types of leukemia,
such as the one from which Mario Lemieux suffered a few years ago. Finally,
the economic benefits of biological diversity are far-reaching, affecting
the development of resources, such as forestry, fishing and agriculture,
as well as pharmacology, biotechnology and ecotourism.
Canadas responsibilities
with respect to the conservation of biological resources are extensive,
the country has 13 million square kilometres of land and water, while
its coastline is the longest in the world, consisting of close to 244,000
kilometres bordering the Atlantic, Pacific and Arctic oceans. Canada is
home to almost 20% of the planets wildlife, 24% of its wetlands,
20% of its freshwater, and close to 10% of its forests.(8)
It comes as no surprise, therefore, that the diversity of wild species
is an integral part of this countrys heritage and identity. This
diversity has also given rise to numerous recreational activities, such
as hunting, fishing and tourism, which bring in billions of dollars and
provide jobs for many Canadians. Ironically, many of the species that
are particularly popular with tourists are at risk; they include the Grizzly
Bear, the Wood Bison, the St. Lawrence Beluga Whale, the Sea Otter, the
Harlequin Duck, and the Trumpeter Swan.(9)
In order to satisfy its
future needs, humanity will have to turn to nature, as it did in the past,
to find new sources of medicine or chemicals, or to improve crop production.
If it fails in its attempt to preserve biodiversity, it is in danger of
losing all these possibilities. A recent discovery in the pharmacological
and medical sector, taxol, is an eloquent illustration of how important
it is to meet the goal of maintaining biodiversity and shows that the
problem is not restricted to the tropical zones. Taxol is an anticancer
agent discovered in the bark of the Pacific Yew, which grows on the west
coast of Canada and the United States. As well, a powerful insect repellent,
trans-pulegol, was recently discovered in an endangered plant of the mint
family.(10) Furthermore,
each species is a unique source of genetic information and the future
of research into genetics or biotechnology will depend on what information
is available. Finally, biological diversity guarantees a good range choice
of future options for reacting to changing and unexpected environmental
conditions.
Despite the importance of
biodiversity to humanity, its worldwide decline is now recognized as one
of todays most serious environmental problems.(11)
The extinction of species goes on, of course, as a natural phenomenon;
new species arise, while others disappear forever. Until a few decades
ago, there was a general trend toward greater diversity, with losses amply
offset by the evolution of new species; however, in recent decades we
are seeing a considerable reduction in biodiversity, largely because of
human activities associated with industrial, agricultural and urban development.
Some researchers estimate that the impact of human beings on forests and
biologically rich environments has become so intense that the current
rate of species extinction is 1,000 to 10,000 times greater than the natural
rate of extinction before the appearance of homo sapiens.(12)
Nobody knows exactly how
many species there are in the world; however, according to the first United
Nations report on biodiversity, published in late 1995, there are 13 to
14 million, of which only 1.75 million have been identified. According
to the same report, 484 animal species and 654 plant species have disappeared
over the last 400 years, and over 30,000 species are in danger of extinction.(13)
The U.S. National Science Board estimates that 25% of the species now
on earth could disappear over the next 25 years;(14)
this is the most serious of the global changes, especially because the
loss of biodiversity is irreversible.
It is recognized that biological
diversity is greater in tropical zones than in those that are temperate
and colder. This does not mean, however, that the protection of biodiversity
is any less crucial in Canada than elsewhere; each species is important
to the proper functioning of the ecosystem in which it evolves. As Table
1 shows, 71,895 species have been listed to date in Canada. Furthermore,
scientists suspect the existence of another 53,780 species yet to be identified
and described. The numbers are highest for insects, both for known and
suspected species.
B.
Consequences of the Loss of Biodiversity in Canada
The U.N. report on biodiversity
offers a number of explanations for the decline in biodiversity. They
include the increase in population and economic development, which, in
their individual ways, help to use up biological resources. Humanity has
also failed in its attempt to evaluate the long-term effects of behaviour
that leads to destruction of habitats, exploitation of natural resources
and the introduction of exotic species. The inability of the laws of the
economic market to recognize the value of maintaining biodiversity is
another factor. Increases in human migration, travel and international
trade also constitute a threat to biodiversity, as does the increase in
pollution.(15)
Table 1: The Biological
Diversity of Wild Species in Canada
Plant and
Animal Groups
|
Known
Species(a)
|
Suspected
Species(a)
|
Algae
and diatoms |
5,323 |
2,800 |
Slime
molds, fungi, and lichens |
11,400 |
3,600 |
Mosses
and liverworts |
965 |
50 |
Ferns
and fern allies |
141 |
15 |
Vascular
plants (about 78% native) |
4,187(b) |
100 |
Molluscs |
1,121 |
100 |
Crustaceans |
3,008 |
1,100 |
Insects |
33,755 |
32,800 |
Spiders,
mites, and ticks |
3,171 |
7,700 |
Other
invertebrates |
6,879 |
5,000 |
Sharks,
bony fish, and lampreys |
1,091 |
513 |
Amphibians
and reptiles |
83 |
2 |
Birds |
578 |
0 |
Mammals
(excluding humans) |
193 |
0 |
Total |
71,895 |
53,780 |
(a) "Known species"
are those that have already been named and described, whereas "suspected
species" are those that are thought to exist but have not been named
or described. Bacteria and viruses also contribute part of Canadas
biological diversity. Almost 170,000 species are suspected to exist in
the country, but only about 2,200 species have even been named.
(b) Of the species total
for vascular plants, 3,269 are considered native species and 918 are introduced
or non-native.
Source: Environment Canada,
The State of Canadas Environment - 1991, Canadas Green
Plan, Ottawa, Government of Canada, 1991, c. 6, p. 5.
In Canada, the primary
cause of the reduction in biodiversity is the loss of habitats. It has
been estimated that 80% of the reduction in species in this country has
come about for this reason.(16)
Overhunting, as in the case of the Grizzly Bear, overfishing, pollution,
and the introduction of exotic species such as the Zebra Mussel are the
other principal causes.
Environment Canada has attempted
to estimate the number of eco-regions at high risk with respect to biodiversity.
Of the 177 eco-regions identified in Canada, 14, or 7% of Canada, are
considered to be at high risk, primarily because of conversion of lands
to agricultural or urban use. Thus, we have remaining less than 13% of
shortgrass prairie, 19% of mixed-grass prairie, 16% of aspen parkland
and only a few hectares of tallgrass prairie. Urbanization is concentrated
in the Quebec City-Windsor corridor, where the ecosystems with the most
species are found. In these inhabited regions, which are home to almost
half the species that are threatened or on the way to extinction in Canada,
the wetlands have been reduced by close to 90%. Similarly, only small
patches of the Carolinian forest remain, in the extreme southern part
of Ontario.(17)
Forestry is another land
use that has played a large role in the loss of habitats. With forests
covering almost half of Canada, it is difficult to protect biodiversity
unless we protect forest ecosystems and the species they contain. Unfortunately,
the number of pristine temperate west coast rain forests keeps shrinking;
in the three Maritime provinces, old-growth forests cover a very small
area and exist only in patches, while in central Canada only a few small
stands of old red and white pines remain.(18)
Canadas aquatic and
marine systems have also undergone major changes. The ecosystem of the
Great Lakes has been significantly affected by heavy fishing and successive
invasions of various species, as well as by pollution and alteration of
habitats. The disappearance of the Blue Walleye of Lake Erie is an example
of overfishing. In Atlantic coastal waters, heavy exploitation of the
ecosystem of Georges Bank between 1963 and 1986 resulted in a decrease
in the proportion of cod in the total catch from 55% to 11%, while the
proportion of dogfish in the catch jumped from 2% to 41%.(19)
Exotic species introduced
include the fungus responsible for Dutch elm disease, which has eliminated
almost all mature elms in many areas. Other species are on the increase,
such as the Ring-billed Gull, which is invading the cities of the St.
Lawrence and the Great Lakes.(20)
Ecosystems are not static, and changes in their composition are normal,
but care must be taken not to accelerate the process or create conditions
that could lead to the displacement of indigenous species.
The only means of maintaining
a significant portion of biological diversity is to lessen the impact
of human activities on the global environment. The first step in this
direction, however, continues to be the establishment of strategies for
the management of threatened species. The importance of this measure resides
in the fact that plants and animals, particularly birds and mammals, are
known as excellent indicators of the general state of the environment.
One of the best known examples is, of course, DDT; this product had bioaccumulated
in the food chain to such an extent that, even after it was banned, it
posed a large threat to the survival of predatory birds, such as the Peregrine
Falcon and the Bald Eagle, which had reproductive problems directly linked
to the presence of the pesticide in the environment. When a species dies
out or is at risk, it very often indicates that there is too much human
pressure on the ecosystem of which it forms a part.
Table 2:
Risk Categories Used by COSEWIC
Status
|
Definition
|
Species
|
Any indigenous
species, subspecies or geographically separate population
|
Vulnerable
|
A species
particularly at risk because of low or declining numbers, small
range or for some other reason, but that is not threatened
|
Threatened
|
A species
likely to become endangered in Canada if the factors affecting
its vulnerability are not reversed
|
Endangered
|
A species
threatened with imminent extinction or extirpation throughout
all or a significant portion of its Canadian range
|
Extirpated
|
A species
no longer existing in the wild in Canada but occurring elsewhere
|
Extinct
|
A species
formerly indigenous to Canada that no longer exists anywhere
|
Not at
risk
|
A species
that has been evaluated and found to be not at risk
|
Indeterminate
|
A species
for which there is insufficient scientific information to support
a status designation
|
Source: Committee on the
Status of Endangered Wildlife in Canada, Canadian Species at Risk -
April 1994, Ottawa, 15 p; and Update on Canadian Species at Risk,
Press Release, 18 April 1996, p. 2.
SPECIES
AT RISK IN CANADA
For almost 20 years,
the Committee on the Status of Endangered Wildlife in Canada (COSEWIC)
has determined the risk category of wild species, sub-species and separate
populations in Canada (see definitions of categories in Table 2). COSEWIC
is made up of independent scientific experts from each provincial and
territorial wildlife management agency, four federal agencies and three
non-governmental conservation organizations. Over the years, COSEWIC has
compiled a credible and recognized list of Canadian species at risk, based
on solid scientific facts. The species examined by the committee include
birds, mammals, fish, amphibians, reptiles and vascular plants. In 1994,
COSEWICs mandate was expanded to include some 4,600 species of butterflies
and moths, 1,400 species of shellfish, 1,000 species of moss and approximately
11,000 species of lichens and fungi.(21)
Out of a total of almost 72,000 species, 22,000 or 30% of all known species
in Canada are now being studied by COSEWIC.
In April 1996, the COSEWIC
list comprised 275 species at risk, broken down as follows: 125 vulnerable
species, 65 threatened species, 64 endangered species, 11 extirpated species
and 10 extinct species (Table 2). The 1996 list contained 11 more species
than the 1995 list, including one species of marine mollusc that has been
extinct since 1929. Four species of birds that were at risk in 1995 are
no longer considered at risk: the Eastern Bluebird, which has been the
focus of an effective nesting box program, the Coopers Hawk, the
Great Grey Owl, and the Trumpeter Swan. On the other hand, the risk to
a number of other species has increased, among them the Newfoundland Pine
Marten and the Prothonotary Warbler. Finally, four plant species in the
Garry Oak forests on the south end of Vancouver Island were designated
endangered and one species was designated as threatened.(22)
Table 3:
Canadian Species at Risk as of April 1996 According to COSEWIC
Category
|
Mammals
|
Birds
|
Fish
|
Amphibians
and
Reptiles
|
Molluscs
|
Vascular
Plants
|
Lichens
|
Total
|
Extinct
|
2
|
3
|
4
|
0
|
1
|
0
|
0
|
10
|
Extirpated
|
5
|
1
|
2
|
1
|
|
2
|
0
|
11
|
Endangered
|
12
|
16
|
4
|
4
|
|
27
|
1
|
64
|
Threatened
|
9
|
6
|
12
|
3
|
|
35
|
0
|
65
|
Vulnerable
|
25
|
20
|
38
|
8
|
|
31
|
3
|
125
|
Total
|
53
|
46
|
46
|
16
|
|
95
|
4
|
275
|
Source: Environment Canada,
Canadian Wildlife Service, The Canadian Endangered Species Act: A Legislative
Proposal, 1995, p. 4; and Committee on the Status of Endangered Wildlife
Species in Canada (COSEWIC), Canadian Species at Risk - April 1996,
Ottawa, 18 p.
The Great Auk and the Passenger
Pigeon are two well-known examples of extinct species. The Swift Fox,
which had ceased to exist in the wild in Canada, was recently reintroduced
on the Prairies. The list of endangered species includes the Vancouver
Island Marmot and the Peary Caribou. In Eastern Canada, the Piping Plover
is endangered because its nesting sites are frequently disturbed by motorized
vehicles. Another species of bird, the Whooping Crane, survives primarily
in Wood Buffalo National Park. Also on the endangered list are three plant
species: the Western Fringed Prairie Orchid, the Eastern Prickly Pear
Cactus, which is found in southern Ontario, and the Small White Ladys
Slipper, also a member of the family Orchidae. The Newfoundland Pine Marten
used to be a threatened species, but recently had to be designated endangered;(23)
this is a telling example of a species at risk in Canada that came to
be at even greater risk because the factors that made it vulnerable were
not reversed.
In the threatened species
category, the St. Lawrence Beluga is a well-known example of a species
that may become endangered in Canada, primarily because of high levels
of toxic pollution in the Great Lakes and the St. Lawrence Seaway. Another
threatened species, the Eastern Massassauga Rattlesnake, is also in jeopardy
because of the fragmentation of its habitat in the Georgian Bay region.
Two plants, Blue Ash and American Ginseng, are also threatened. The Polar
Bear, the Wolverine, the Peregrine Falcon, the Green Sturgeon, the Gulf
of St. Lawrence Aster and the Cryptic Paw Lichen are just some of the
many vulnerable species in Canada. The Peregrine Falcon is the best known
of these species because of repopulation programs in several provinces,
notably Quebec, whereby young falcons have been raised in captivity and
then released in natural and urban settings.
PROTECTING
SPECIES AT RISK IN CANADA
A.
The Federal Level
There is still no specific
federal legislation in Canada to protect species of plants and animals
at risk. There are, however, a number of statutes that, directly or indirectly,
offer some protection for such species. Canada also has a program for
implementing recovery plans (RENEW) and a committee that lists species
at risk (COSEWIC). As well, Canadian conservation groups have taken initiatives
to save some species at risk.
1. Existing Legislation
In Canada, the Fisheries
Act and the Migratory Birds Convention Act afford general protection
for species as a whole but do not contain specific provisions dealing
with species at risk. On the other hand, the Canada Wildlife Act
and the National Parks Act do contain specific provisions on species
at risk, in addition to their broader mandate. These four statutes also
protect some habitats that are crucial to the survival of species at risk.
With regard to domestic and international trade, the Wild Animal and
Plant and Regulation of International and Interprovincial Trade Act
applies to all species but also includes measures to protect species at
risk.
The Fisheries Act
empowers the Governor in Council to regulate all matters related to fishing,
including the conservation and protection of fish and their spawning grounds.
The word "fish" in the Act includes shellfish, crustaceans,
marine animals and the eggs, spawn, spat and juvenile stages of fish,
shellfish and marine animals. The Act thus protects all species of fish
and also provides strong protection for fish habitats, including marine
plants.
In 1916, Canada and the
United States signed the Migratory Birds Convention, which regulates hunting,
deters trade and marketing, controls the use of migratory birds through
permits and licences, and allows for the creation of sanctuaries to control
and manage protected areas. There are 101 migratory bird sanctuaries protecting
some 11.3 million hectares. The Convention was revised in 1994 to
include protection for sperm, embryos and tissue cultures from migratory
birds, as well as birds and their eggs. The Convention covers all migratory
birds, so that species at risk, such as the Eskimo Curlew, the Harlequin
Duck, the Piping Plover, the Peregrine Falcon, the Spotted Owl and the
Whooping Crane, do have some protection, even though there is no specific
legislation for species at risk.
In 1973, Canada passed the
Canada Wildlife Act in order for the federal authorities to undertake
research on wildlife, especially large species, and work with the provinces
to carry out conservation and recreational activities affecting wildlife
and their habitats. The Act was amended in 1994 to include all land species
of flora and fauna and species found within 200 nautical miles of the
Canadian coast. The habitats of all these species are also protected by
the Act, and there are mechanisms for protecting endangered wildlife.
In 1990, two years before
the Rio Summit, the Canada Wildlife Act was strengthened by the
adoption of a wildlife policy for Canada. The goal of the policy is to
maintain and enhance the health and diversity of Canadas wildlife,
for its own sake and for the benefit of present and future generations
of Canadians.(24) The
policy not only recognizes the importance of biodiversity, but also states
that in policy making and development planning, the consideration of economic,
social and environmental factors together enables wildlife conservation
to be incorporated into policies, plans and projects from the start. The
policy also recognizes that protection of habitats and ecosystems is the
cheapest and most effective way of conserving wildlife and must always
take precedence over other means.
For more than a century,
the National Parks Act has protected various sites for conservation
for the benefit of present and future generations. Under the Act, the
Governor in Council has the power to make regulations concerning the preservation,
control and management of parks; the protection of fauna, including the
taking of specimens for scientific or propagation purposes; the destruction
or removal of dangerous or superabundant species; and the management and
regulation of fishing and the protection of fish, including the prevention
and remedying of any obstruction or pollution of waterways. All wild species
of flora and fauna found within the boundaries of national parks are thus
protected. In addition, the Act provides heavy fines for poaching protected
or at-risk species in national parks.
Trafficking in threatened
species currently represents a market that is worth approximately $1.5
billion and affects some 37,000 plant and animal species. The United States
and Canada, for example, annually import 10,000 monkeys for use in research
and almost 450,000 live birds to be kept as pets. Canadians ship Caribou
antlers and Black Bear gall bladders to countries in Asia.(25)
These figures show how important it is to regulate international trade
in wildlife.
Signed in 1973 by some 100
countries, Canada among them, the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) is considered the most
successful international conservation agreement in history.(26)
The convention plays an important role in controlling legal and illegal
interstate trade in wild species at risk and products made from those
species. The aim is not to eliminate trade, but rather to encourage rational,
sustainable use of resources for development. In the early 1990s, the
Government of Canada, recognizing the need to strengthen CITES, passed
the Wild Animal and Plant Protection and Regulation of International
and Interprovincial Trade Act (WAPPRIITA). This Act means that interprovincial
trade, as well as international trade, can now be controlled; moreover,
its jurisdiction extends to indigenous species designated at risk by COSEWIC,
all in accordance with CITES. The Act prohibits the export and import
of wild animals and plants at risk or parts thereof, in accordance with
international agreements, provincial conservation laws and conservation
laws in other countries; it also prohibits the possession of wild animals
or plants at risk or parts or products thereof for the purpose of sale
or distribution.
2. Recovery of
Nationally Endangered Wildlife Committee
The Recovery of Nationally
Endangered Wildlife (RENEW) Committee was established in 1988 to prepare
recovery plans for species listed at risk by COSEWIC. Its mandate is limited
to birds, mammals, amphibians and reptiles, although the possibility of
extending it to include aquatic vertebrates, invertebrates and plants
was considered in 1993. Only a dozen recovery plans have been produced,
but several others are in the works. Despite the considerable time and
energy it takes to produce results, two of the plans have helped to considerably
improve the status of such species as the Ferruginous Hawk and the Wood
Bison.(27) The effectiveness
of the plans is severely constrained by limited financial resources, insufficient
scientific data to manage each species and the fact that the plans do
not have the force of law. A good example of this is the case of the Burrowing
Owl. Under the Operation Burrowing Owl program, an agreement has been
struck with farmers and ranchers to protect nests on their property; however,
the agreement protects only a small portion of the owls nesting
habitat. A recovery plan prepared under the RENEW program identifies the
pesticide carbofuran as a factor in the decline of the species. Unfortunately,
the plan has not been able to halt the use of carbofuran because it does
not have any legal authority. The Burrowing Owl population continues to
decrease, and in April 1995, the status of the species was changed from
threatened to endangered.(28)
Efforts by conservation
groups to protect some of our species at risk should also be noted. The
Wye Marsh Wildlife Centre in Midland, Ontario, for example, has been working
in recent years to increase the population of Trumpeter Swans, a vulnerable
species.(29) The centres
efforts seem to have paid off, as the COSEWIC list in April 1996 moved
the Trumpeter Swan from "vulnerable" to "not at risk."
B.
The Provincial Level
Four Canadian provinces
have laws that specifically protect species at risk. Two of the four have
had legislation in place for many years: Ontario since 1973 and New Brunswick
since 1974. The other two provincial statutes are more recent: Quebecs
was passed in 1989 and Manitobas in 1990. These initiatives are
certainly very commendable and represent a step in the right direction,
particularly as they apply to private, as well as public, land. However,
some experts feel that none of the four provincial statutes is strong
enough, in part because all the provisions are discretionary. Listing
species at risk is discretionary, and habitat protection is not required.
Furthermore, none of the statutes mentions recovery plans for threatened
species or includes mechanisms for studying and regulating projects likely
to disturb a species at risk or its habitat. The analysts also feel these
statutes have never been effectively enforced.(30)
Ontarios and New Brunswicks
older laws on species at risk apply only to species of flora and fauna
(New Brunswicks legislation also covers subspecies) and include
only one category of risk, namely endangered. There is no requirement
to designate listed species at risk or to determine their habitat. Regarding
activities that may be harmful to species at risk, the New Brunswick legislation
prohibits only those that affect plants, whereas the Ontario legislation
prohibits those that are harmful to any species.(31)
The Ontario statute, like its counterparts in the other three provinces,
should be strengthened. Although Ontario prohibits the killing, harming
or taking of species at risk, the Crown has to prove that the action was
"wilful." Nor does the Act prohibit the possession, sale or
transportation of species at risk or parts thereof.(32)
There have been four convictions under the Ontario statute, which has
been in place for 23 years, but none pertained to habitat and the highest
fine was $500.(33)
According to the Endangered
Species Coalition, the Quebec and Manitoba statutes are stronger than
their counterparts in Ontario and New Brunswick. They cover a wider range
of species and include two risk categories, namely endangered and threatened;
under the Quebec statute, these categories correspond to threatened and
vulnerable respectively. In addition, the Manitoba legislation provides
for the creation of a scientific committee to advise the government on
the identification and protection of species at risk, while the Quebec
legislation allows for identification of the habitat of each species at
risk.(34)
The Manitoba statute applies
to all taxonomic groups of plants and animals (species, subspecies, breeds,
varieties and separate populations) and also includes eggs and larvae.
The definition of habitat is broad: an area of land, water or air that
contains the natural resources on which the species depends for its life
and propagation.(35)
However, there is no requirement to establish a list of species at risk
or their habitats. The Act also states that a permit is required for any
activity likely to disturb species at risk.
One of the interesting features
of Quebecs Act respecting threatened or vulnerable species is that
the companion policy recognizes the need to conserve Quebecs genetic
diversity by preventing species from becoming extinct, preventing the
decline of populations of threatened or vulnerable species, ensuring conservation
and restoration of the habitats of vulnerable and threatened species and
working to prevent species from becoming threatened or vulnerable.(36)
Like its Manitoba counterpart, the Quebec statute applies to all taxonomic
groups of plants and animals, including invertebrates other than molluscs
and crustaceans. It also includes the same two risk categories. Listing
designated species is not mandatory, however. In 1995, the Quebec government
implemented the first two regulations to protect nine plants. The first
regulation designates the Wild Leek as a vulnerable species and prohibits
trade in and regulates the harvesting of the plant. The second designates
the other eight plants as threatened species and protects them and their
habitats.(37) Quebecs
legislation on threatened and vulnerable species does not define habitat
but, in contrast to other provincial legislation, does allow habitat to
be identified for each species at risk. With regard to activities harmful
to species at risk or their habitats, the Act prohibits possession, harvesting,
exploitation, mutilation, destruction, acquisition, transfer and genetic
manipulation; however, these restrictions apply to plants only, not to
wildlife.(38)
One development has been
challenged under the Quebec statute because it affected the habitat of
species at risk: the Government of Quebec permanently halted the project
to build a small hydroelectric station upstream of the Chambly Rapids
on the Richelieu River south of Montreal. This landmark decision was made
because of the presence in the rapids of an endangered fish species, the
Copper Redhorse. The species does not occur anywhere else in the world
and is now the focus of intensive research aimed at enabling it to reproduce
under controlled conditions in a fish farming environment. Researchers
believe the Copper Redhorse may be the only species capable of feeding
on the infamous Zebra Mussel, which, since it was introduced into the
St. Lawrence, the Great Lakes and their tributaries, has been clogging
the drinking water supply and waste water disposal equipment. At least
two other rare species of fish can be found in this part of the Richelieu
River: the Channel Darter and the Mooneye. The Quebec governments
decision, made on the recommendation of the Department of the Environment
and Wildlife, is based in large part on the provinces desire to
honour its commitment to the Convention on Biological Diversity, which
Canada has ratified and which calls on the signatories to make every effort
to prevent threatened species from becoming extinct.(39)
LEGISLATION
ON SPECIES AT RISK IN OTHER COUNTRIES
In 1973, the United States
was the first country to pass a law on endangered species. Close to 20
years later, the Government of Australia also passed federal legislative
measures on this issue. These two statutes are more comprehensive and
much more stringent than the provincial legislation mentioned earlier.
They provide for the development of a list of endangered species, the
identification of their habitats and the implementation of recovery plans
for each of the species listed. They also prohibit a whole range of activities
that could be harmful to endangered species. Finally, all federal bills
likely to have an adverse effect on an endangered species or its habitat
must have the approval of the authorities responsible for implementing
the endangered species Act. Below, in addition to the American and Australian
legislation, we examine legislative measures concerning the protection
of endangered species and their habitats which were passed by the European
Community in 1992.
A.
The U.S. Endangered Species Act, 1973
The U.S. Endangered Species
Act can be traced back to the mid-1950s, when a group of biologists
met in Washington to discuss the expected extinction of the Whooping Crane,
of which only 24 remained. The American Congress took a number of initiatives
in an attempt to check the problem, but was not successful. Following
this failure, it passed the Endangered Species Act in 1973,(40)
a move that was very progressive for the time. Some 20 years later, this
legislation is still considered to be the most effective in the world
and is a model for all other countries.
1.
Various Aspects of the Act
The first requirement of
the American legislation is to designate species that are threatened or
endangered. The majority of species, subspecies and distinct populations
are included in this process, with the exception of insects; the Act also
protects eggs and other developmental stages. The list of designated species
is based on the best scientific information available and must be revised
every five years. In 1994, the U.S. Fish and Wildlife Service had put
on the list 773 species at risk, 75% of which fell into the endangered
category.(41)
Second, a recovery plan
is required for each species at risk; not all species benefit from such
a plan, however, even today. In the early 1980s, because of lack of funds,
a recovery plan had been drawn up for only half of the 425 species then
listed. This situation was corrected with the 1988 amendments, which increased
the level of funding from $25 million in 1985 to $66 million in 1992.
At the same time, efforts to monitor the remaining species awaiting listing
were encouraged, and the Department of the Interior pledged that it would
work with the States to monitor recovering species.(42)
These corrective measures allowed a greater number of species to benefit
from recovery plans; in 1994, such plans had been established for 60%
of the species on the list. There is a relatively high success rate for
these recovery plans, which have arrested the decline of approximately
40% of the species listed.(43)
The purpose of a recovery plan is to encourage the conservation and survival
of a species at risk, to the extent that it will no longer need to be
protected.
The American legislation
also requires designation of the habitat, or a part of the habitat, critical
to a species at risk. The focus is on specific areas within the geographic
distribution of the species that are essential to its conservation and
that require management or special protection.(44)
The fact that the entire habitat of a species is not included is one of
the weaknesses of the American legislation, according to the Endangered
Species Coalition, because the potential habitat could be important for
the recovery of a species at risk. Furthermore, it should be noted that
species at risk do not always have designated critical habitats. Since
the 1978 amendments, the designation of critical habitats has been undermined
by a process of cost-benefit analysis, whereby, if the costs of designating
a particular habitat as critical outweigh the benefits, the area can be
excluded, unless that would result in the extinction of the species.(45)
The U.S. Fish and Wildlife Service used this amendment to exclude 1.8
million hectares, including 869,000 acres of federal lands, from the Spotted
Owls critical habitat in the northwestern United States, on the
grounds that otherwise the job loss and reduction in federal payments
would have been too great.(46)
Also prohibited by the American
legislation are a large number of activities that could adversely affect
species at risk, such as harassing, hunting, capturing or collecting individual
members of these species, as well as harming them; it also makes it an
offence to bring about a change or a deterioration in their habitat. These
bans apply equally to private and public lands. Thus, any private landowner
must obtain a permit to develop lands on which representatives of the
species at risk are present; such a permit is granted upon submission
of a satisfactory conservation plan minimizing the impact of injurious
actions.
The final requirement of
the American legislation is a mechanism for the review of all federal
projects that could disturb the critical habitat of species at risk. A
project that does not disturb the critical habitat of a species is not
included in this process. Despite this weakness, the Endangered Species
Coalition views the American experience as very positive. This statement
is based on a survey by the U.S. Fish and Wildlife Service indicating
that 99.97% of projects that could have presented a conflict received
the go-ahead after advance review. In other words, it proved possible
to avoid endangering species through the introduction of amendments and
mitigating measures. In the 21 years this Act has been in existence, there
have been only three occasions, including the cases of the Spotted Owl
and the Snail Darter, on which it was necessary to resort to the procedure
because of an irreconcilable conflict between a development project and
the protection of one or more endangered species.(47)
2.
Review of the Act
A number of factors are
at play in the current five-year review of the U.S. Endangered Species
Act slated to begin in 1995. The Republicans and the industrial lobbies,
who oppose the Act because they view it as an obstacle to development,
would like to take this opportunity to water it down. The conservationist
lobbies, on the other hand, defend the Act, claiming that it has prevented
the extinction of the Bald Eagle (the American emblem) and the Grizzly
Bear, as well as of some other less well known species. A situation that
undoubtedly worsened the conflict between opponents of the Act and its
defenders was the injunction obtained by American ecologists in the mid-1980s
with respect to the habitat of the Spotted Owl. For years, this injunction
banned logging in federal forests covering 25 million hectares, in the
American Northwest, from the State of Washington to northern California.(48)
However, in 1992, the Endangered Species Committee, composed of seven
members of the Cabinet and commonly known as the "God Committee,"
finally exempted 1.8 million hectares of the Spotted Owls critical
habitat in order to permit logging in a number of locations, including
850 hectares of old-growth forest in Oregon.(49)
Opponents of the U.S. Endangered
Species Act fault it on many grounds, including ineffectiveness, because
only a few species have been taken off the list. They also feel that the
Act is detrimental to economic development and that the list is based
on incomplete scientific information, so that it includes species that
do not need protection. Finally, they feel it focuses unduly on subspecies
and geographically separate populations. The National Wildlife Federation,
American and Canadian scientists, and the Endangered Species Coalition
do not, however, share these points of view; they feel, on the contrary,
that the U.S. Endangered Species Act has proved to be an essential
and effective tool against extinction of species. In fact, although only
seven species have been taken off the list because they were no longer
at risk, approximately 40% of all species on the list are in stabilizing
or improving condition. In addition, of over 145,000 federal actions reviewed
under the Act between 1979 and 1992, fewer than 2% were found to jeopardize
species, and only 69 projects were cancelled. Furthermore, the majority
of species are added to the list only when their numbers are very low;
only four species of a total of 950 at risk have been taken off the list
because subsequent studies showed that they were more numerous than had
been believed. Finally, subspecies and geographically separate populations
represent only 20% of all species, but their ecological roles are often
important in the ecosystems to which they belong.(50)
With respect to the unavailability
of scientific information on which to base informed decisions on species
at risk, new tools are constantly being discovered for improving taxonomic
and ecological knowledge. Thus, thanks to recent theoretical and technical
developments in genetics and molecular biology, it is now possible to
say with certainty whether a particular organism belongs to a distinct
species or to a subspecies or a different variety. For example, DNA analysis
has shown that the red wolf, which had been designated a threatened species
and on which considerable amounts of money were spent with a view to its
conservation, was merely a hybrid of the Wolf and the Coyote. This is
perhaps one of the reasons why Americans want to incorporate the new knowledge
of molecular biology into the amendments to the Endangered Species
Act.(51) Such errors
are not frequent, however; they are the exception. Another example, this
time from Quebec, of the value of this scientific progress is the case
of the St. Lawrence Beluga Whale. DNA analysis has determined that the
population of St. Lawrence Belugas, which is geographically separate from
the population of Arctic Belugas, is also genetically different from them
and therefore warrants protection.
The American legislation
is also criticized for its emphasis on the protection of species as opposed
to habitats. Although many scientists agree on the need to protect both
individual species and habitats, there are many who feel that there has
been too much emphasis on the former and that there should be a greater
focus on habitats or ecosystems. They feel that protecting an ecosystem,
rather than an individual species, will also protect other species, including
those not yet identified. A habitat-based approach would also make it
possible to act before a species was nearing extinction. This sort of
approach has already been used for the last decade or so by a number of
conservation organizations. It consists of identifying trouble spots (that
is, habitats with a broad diversity of species or the greatest number
of species at risk) and giving them protection. One example of a trouble
spot is the habitat of the Spotted Owl, which is considered an "umbrella"
species (a species whose protection, de facto, provides protection
for numerous other species). Setting up a system of reserves for the protection
of old-growth forests in the Pacific northwest, the habitat of the Spotted
Owl, would simultaneously protect 280 species of plants and animals inhabiting
the same ecosystem.(52)
A final point on which many
commentators agree, however, is the need to amend the Act with respect
to private land. The National Wildlife Federation maintains that owners
of private land containing species at risk must be given greater support
and incentives. Some scientists deplore the fact that the Act only provides
for penalties to punish offenders; they propose that measures be added
to encourage land owners to protect species at risk. The U.S. government
is already providing incentives for farmers, livestock owners and small
land owners to protect wetlands, forests, soil and water quality. All
that would be needed would be to open up these programs to owners of land
containing examples of species at risk.(53)
B.
Australias Commonwealths Endangered Species Protection
Act, 1992
Australia is at the centre
of the world, crisis in biodiversity because it has the highest rate of
extinction of mammals in the world, with 20% of its vertebrate wildlife
deemed to be at risk. This situation reflects the considerable alteration
of habitats on that continent, with the deterioration of 50% of its soils
and the significant modification of 75% of its vegetation. Three years
after the passage of Australias Commonwealths Endangered
Species Protection Act in 1992, the list of extinct and threatened
species is long. Since the continent was first settled by the Europeans,
it is thought that 40 species of vertebrates and 75 species of plants
have become extinct, while another 150 species of vertebrates and 870
species of plants are threatened.(54)
The Australian Act has much
in common with its American counterpart, although the former applies only
to species that come under federal jurisdiction. It provides for the establishment
of a list of species at risk, broken down into two categories, those that
are threatened and those that are endangered. This list includes the habitat
of each species named, and a recovery plan must be given for each one.
The purpose of the plan is to stop the decline of, and support the recovery
of, the species so that its chances of long term survival are maximized.(55)
With respect to habitat,
unlike the American legislation, the Australian legislation designates
the entire habitat of the species at risk, and not just the critical habitat.
Habitat is defined as an area in which an organism lives, or has lived,
and could be reintroduced.(56)
As with the American legislation, a good number of activities that could
affect species at risk or their habitats are prohibited: killing, taking,
trading, keeping or moving representatives of species or destroying or
harming their environment. All these activities are prohibited on federal
public lands and on private lands designated by the government. Finally,
like the American legislation, the Australian legislation also provides
for the review of all projects that might disturb the critical habitat
of a species at risk.
The Australian legislation
also includes three interesting new elements. The first is a list of endangered
ecosystems. Recognition of these ecosystems is a great advantage, since
the best way of protecting species at risk is to identify and protect
the communities to which they belong. The second interesting element is
a list of the activities considered threatening to species and ecosystems
at risk. Finally, the Australian legislation provides for the formation
of a scientific committee to advise the government on implementation and
necessary amendments.(57)
C.
The European Unions "Habitats" Directive
There has been a steady
deterioration of natural habitats throughout the territory of the member
states of the European Union, and a growing number of wild species are
seriously threatened. In 1992, the Unions Council passed a directive,
known as the "Habitats" directive, on the conservation of natural
habitats, wildlife, and wild plants. This directive aims to conserve European
biodiversity in two ways. First, it obliges member states to protect 293
animal species and 490 plant species. Second, it requires governments
to protect the natural habitats of the most threatened species in Europe.
In 1998, the list of sites selected will be published by the responsible
Commission, and the member states will have until 2004 to give official
undertakings to protect them and to put in place the necessary measures.
These sites, or special conservation areas, will form the "Natura
2000" network. In addition to using various legal means to oblige
member states to respect the Habitats directive, there is a requirement
for an appropriate evaluation of any project or development plan likely
to have an impact on a "Natura 2000" site. It is hoped that
in France, which has had environmental protection legislation since 1976,
the Habitats directive will bring about a significant improvement in the
situation of species at risk.(58)
CANADIAN
FEDERAL INITIATIVES TO PROTECT SPECIES AT RISK
In Canada, the relevance
of legislation to protect species at risk has been a topic of debate for
almost 20 years. During a 1976 symposium on Canadas endangered species
and habitats, one delegate pointed out that programs for species at risk
simply could not protect Canadian flora and fauna without the power of
legislation to back them up. In 1989, the Greenprint for Canada Committee,
which consisted of 34 conservation and aboriginal organizations, submitted
a report to the Prime Minister recommending the enactment of a federal
law on species at risk in order to consolidate Canadas biological
diversity. Environment Canada was not convinced that such a law was needed,
however. The federal government believed at the time that it could use
existing federal statutes related to wildlife, flora, and the environment
to protect species at risk, following the example of the United Kingdom,
Germany, France and other countries in Europe. However, a brief submitted
in 1992 to the Standing Committee on the Environment (by a coalition made
up of the World Wildlife Fund, the Canadian Nature Federation, the Canadian
Parks and Wilderness Society, the Sierra Club of Canada and the Canadian
Environmental Law Association) did much to change the governments
perception on this front. The brief to the Standing Committee on the Environment,
which was considering among other items the substance of the Agenda 21
chapter on biodiversity, stressed the need for legislation on species
at risk in order to implement the Convention on Biological Diversity.
The following year, the Standing Committee on the Environment recommended
that the Government of Canada take immediate steps to develop an integrated
legislative approach to the protection of endangered species, habitats,
ecosystems and biodiversity in this country.(59)
While it is true that federal
legislation related generally to wildlife, flora and the environment affords
broad and flexible protection for many species at risk, this protection
is, according to the Coalition, inconsistent. For example, the Fisheries
Act protects fish, while the Migratory Birds Convention protects some
birds. Because mechanisms vary from statute to statute, protection remains
piecemeal. Obviously, species at risk that are not covered by any statute
are not protected at all. The habitats of some species at risk can also
be protected, in whole or in part, under federal laws that contain suitable
provisions. However, the primary function of these laws is not to protect
habitats, but rather to prevent the taking of species.(60)
In 1993, acting on the Standing
Committees recommendation, Environment Canada set up a working group
on "Managing Wildlife at Risk: Do We Have the Right Tools?"
The group submitted 10 recommendations on legislation and policy. Three
of those recommendations are particularly relevant: that all provinces
should enact comprehensive legislation governing endangered species; that
provinces with existing endangered species legislation should upgrade
it; and that the federal government should pass an Act, equivalent to
the provincial Acts, that would cover species within its jurisdiction
and frame national minimum standards for the designation and protection
of endangered species of national significance and their habitats and
for the application of recovery strategies.(61)
A.
Parliamentary Initiatives
If one is to believe Statistics
Canada surveys, public interest in endangered wildlife has been very high
for more than a decade.(62)
This public interest did not go unnoticed by some parliamentarians, who
attempted to interest their colleagues in the issue. In 1991, two Private
Members bills were tabled in the House of Commons (MP Wenmans
Bill C-303 on endangered species and biodiversity and MP Caccias
Bill C-209 on the protection and rehabilitation of endangered and threatened
species), but neither bill reached second reading. A modified version
of the Caccia bill tabled in 1994 reached second reading and was referred
to the Standing Committee on Environment and Sustainable Development.
Bill C-275 died on the order paper when the first session of the 35th
Parliament ended in early 1996, but was re-introduced as Bill C-238 as
soon as the second session of the 35th Parliament began.
The preamble to Bill C-303,
introduced in 1991, reflected Mr. Wenmans concerns about the issue
of biodiversity. In addition to the elements normally found in legislation
of this type (that is, the designation of species as either endangered
or threatened, the prohibition of certain activities, the establishment
of recovery plans and the designation of critical habitat zones), the
bill included two interesting features. One of those features, patterned
after Australian legislation, was the proposed designation of endangered
ecosystems. The other was a requirement that departments, agencies and
Crown corporations would have to ensure that every action authorized,
funded or carried out by them: "a) is consistent with the purpose
of the Act; b) does not jeopardize the continued existence of any endangered
species, or result in the destruction or adverse modification of habitat
of any endangered species; and c) does not result in the destruction
or adverse modification of any endangered ecosystem."(63)
Like the Wenman bill, Mr.
Caccias Bill C-238, as it became when re-introduced for first reading
on 18 March 1996, contains, in addition to the usual elements, the
proposal that every environmental impact assessment prescribed by a federal
statute should evaluate its likely impact on endangered or threatened
species or protected habitat. The Caccia bill also incorporates the list
of species designated by COSEWIC.(64)
B.
Environment Canadas Legislative Proposal
In the spring of 1995, the
federal government tabled a discussion paper entitled A National Approach
to Endangered Species Conservation in Canada, which reported the results
of public consultations held in 14 Canadian cities. Ten main themes emerged
from the public consultations, the most frequently mentioned being the
importance of public information. The need for strong legislation was
another common theme. On the other hand, some of the participants said
they felt the existing legislation was adequate and there was no need
to intervene in what many see as an area of provincial/territorial jurisdiction.
Respect for the rights of landowners was also a concern for many participants.
There were some suggestions that the new legislation should not undermine
sound land management, but rather should foster cooperation among landowners;
other participants expressed the view that incentives might encourage
landowners to protect habitats. A number of specific elements of the legislation
were addressed as well. Specifically, it was suggested that the process
of designating species be left to a scientific committee and that prevention
be an important feature of the Act; the Act should be able to ensure that
species do not become vulnerable. Some participants questioned the availability
of human and financial resources to enforce the Act.(65)
As already mentioned, American experience has shown that the issue of
available funds is crucial if anything is to be done to prevent vulnerable
species from moving up to higher-risk categories.
In the fall of 1995, as
follow-up to the consultations, Environment Canada released a legislative
proposal, namely the Canadian Endangered Species Protection Act.
The proposal sparked two main criticisms from almost 180 Canadian scientists
who signed a joint letter to Environment Minister Sheila Copps. The scientists
denounced the proposal as not strong enough, particularly in terms of
protecting the habitats of species at risk. The importance of habitat
protection is confirmed by the fact that 73% of the species around the
world become extinct as a result of destruction of their natural habitats.
Second, the scientists pointed out that the proposed legislation would
apply only to species found on federal land, primarily in national parks,
and species under federal jurisdiction, such as migratory birds, migratory
mammals like the St. Lawrence Beluga and some species of migratory fish.
Federal land accounts for only a very small proportion - roughly 4% -
of Canadas total land base.(66)
Loss of habitat is the greatest
threat to Canadian species, accounting for an estimated 80% of the decline
of species in Canada. It is therefore essential, according to environmentalists,
that federal legislation to protect species at risk make habitat protection
mandatory; under the proposed legislation, only crucial habitats of species
at risk could be designated. For environmentalists it is clear that the
legislation must not leave habitat protection to political discretion.(67)
Similarly, the selection of species at risk for which recovery plans would
be prepared would still be discretionary. Just as habitat protection and
the selection of species for recovery programs would be discretionary,
so the legislation would provide only for the regulation of activities
harmful to species at risk. The prohibition of such activities is a very
important issue. Hunting and other forms of direct exploitation have been
a significant factor in the decline of many species. Overhunting led to
the extinction of the Passenger Pigeon and the Great Auk; several species
of whales are now at risk because of past overhunting, and some species
at risk, such as the Grizzly Bear, are still being hunted. Overharvesting
is also a significant cause of the decline of plants, as in the case of
American Ginseng and Wild Leek.(68)
If this legislative proposal
were to be tabled and passed, it would establish in law the process by
which COSEWIC designates species at risk and the recovery program for
species at risk, which would please many. However, all the proposal requires
is that a list of species at risk be established. The Canadian proposal
is considered to be much weaker than the American law, which requires
everything from the designation of species at risk and their habitats
to recovery plans, along with the prohibition of activities harmful to
species at risk or their habitats. Also missing from the proposed legislation
is a process for preliminary assessment of projects that could disturb
the habitats of species at risk, which analysts feel is a strong feature
of the American legislation. Preliminary assessment of projects is an
essential component of a preventive approach to the protection of species
at risk, which is much more economical than a remedial approach.
The second weakness in the
proposed legislation is that it would apply to federal land only.(69)
The governments approach is, however, related to the opposition
not only of representatives of the natural resources industry, farmers
and even small landowners, but also of the provinces. The natural resources
industry is afraid that protecting the habitats of species at risk will
hamper, if not limit, land development. Farmers in particular are afraid
that legislation on species at risk may infringe their property rights
and are concerned that the federal governments plans do not mention
compensation or incentives for landowners who might be affected by the
legislation. Farmers believe that tax incentives, financial rewards and
other forms of compensation, and even the elimination of certain barriers,
should be used to encourage conservation efforts.(70)
Advocates of habitat protection believe that private land and farmland
would be relatively unaffected by the protection of crucial habitats because
only about 20% of the 243 species at risk in Canada are found exclusively
or primarily on private land. Where farming has a bearing on the survival
of species, only 17 species are found primarily on private land. In those
instances, incentives and assistance for the landowners might very well
contribute significantly to the protection of critical habitats and the
recovery of species at risk.(71)
The provinces, meanwhile,
do not look kindly on federal intervention, even in an area of shared
jurisdiction. Some provinces that have already passed legislation on species
at risk are afraid there will be two processes for designating species
and habitats and consequently a doubling of the resources needed. There
are also concerns about the overregulation that can result from having
two statutes, one provincial and one federal. Certainly, the provinces
will always have reservations about federal intervention, but the Endangered
Species Coalition believes the federal government, the provinces and the
territories have to pull together to protect species at risk. Strong provincial
legislation is needed because most habitats of species at risk are located
on provincial land and there is tremendous expertise in this area at the
provincial level. On the other hand, strong federal legislation is also
needed because many populations of species at risk straddle provincial
borders or are found on federal land. The coalition believes that, in
order to prevent the duplication that the provinces fear, the three levels
of government should co-ordinate their efforts and divide up the implementation
of measures to protect species at risk.(72)
For many, the best idea is probably to harmonize the actions of all the
levels of government and ensure that they complement each other so as
to protect species at risk.
CONCLUSION
Over the years, Canada has
acquired various tools to ensure the protection of natural environments
and the animal and plant species they sustain. The federal government
has taken action with respect to national parks, migratory birds, fish
and wild species generally, particularly in connection with their international
and national trade. These initiatives notwithstanding, many species have
been able to maintain only a fragile hold or have disappeared altogether.
The extinction and decline of certain species, combined with other pressures
on natural ecosystems, have not been without effect on Canadas overall
biodiversity. It is by maintaining the highest possible level of biodiversity,
however, that we will be able to ensure, if not improve, our quality of
life. Many believe that, in order to better protect biodiversity, it is
necessary to intervene directly with respect to vulnerable species by
passing legislation specific to species at risk.
This is what has been done
by a number of countries, including the United States, Australia, Japan
and the European Union. The Endangered Species Act passed by the
United States back in 1973 is still, of course, the best known legislation
and continues to be a model of its kind in the field of natural resource
conservation. It was, to a certain extent, the inspiration for the initiatives
of other countries, although these are more recent, with Australia and
the European Union not having taken action until 1992. In Canada, four
provinces, Ontario, New Brunswick, Quebec and Manitoba, have also passed
legislation of this kind; implementation has been effective to some extent.
Following the lead of other
countries, and of some provinces, the Government of Canada is now thinking
of introducing legislation for the specific purpose of protecting species
at risk. In fact, this idea took on the form of a promise in the February
1996 Throne Speech. A legislative proposal in this regard was prepared
by Environment Canada and has already been the subject of public consultations.
This proposal, which is a follow up to various Private Members bills,
essentially provides for the protection of species at risk on land under
federal jurisdiction. Certain groups have criticized the limited scope
of the proposal and pushed for greater protection of the habitats of species
at risk. Others, however, are concerned that it might hinder development
and restrict the right of property. It remains to be seen how Environment
Canada will interpret the criticism and suggestions from the various stakeholders
and how those provinces that already have such legislation will perceive
the proposal. The federal initiative will be more productive if both levels
of government co-ordinate their efforts to implement measures to protect
species at risk.
The eventual passage of
a federal statute on species at risk would add yet another tool to the
existing array of instruments whose goal, in varying degrees, is the protection
of the environment, natural habitats and the species they contain. The
conservation of biodiversity and of the species themselves is just part,
however, of an overall strategy to promote Canadas sustainable development.
(1)
IUCN, World Conservation Strategy, Gland, Switzerland, 1980.
(2)
World Commission on Environment and Development, Our Common Future,
Oxford University Press, 1987.
(3)
J.P. Drapeau, "Se prendre pour Noé...ou laisser faire?", Franc-Vert,
May, June, July 1992, p 16.
(4)
R.F. Noss and A.Y. Cooperrider, Saving Natures Legacy - Protecting
and Restoring Biodiversity, Island Press, Washington (D.C.), 1994,
p. 5.
(5)
Biodiversity Working Group, Canadian Biodiversity Strategy - Canadas
Response to the Convention on Biological Diversity, November 1994,
p. 4.
(6)
The National Wildlife Federations Endangered Species Program, Why
Should We Save Species, National Wildlife Federations Gopher
Text, 2 p.
(7)
Biodiversity Working Group (1994), p. 4.
(8)
Ibid., p. 8.
(9)
The Sierra Legal Defence Fund, Recommendations for Federal Endangered
Species Legislation, produced for the Endangered Species Coalition,
25 April 1995, p. 8.
(10)
T. Eisner, "The Hidden Value of Species Diversity," Bioscience,
Vol. 42, No. 8; p. 578.
(11)
Biodiversity Working Group (1994), p. 5.
(12)
Ibid., p. 5.
(13)
"Humans Destroying Species At Alarming Rate, UN Says," Ottawa
Citizen, 14 November 1995, p. A9.
(14)
Q.D. Wheeler, "Systematics and Biodiversity-Policies at Higher Levels,"
BioScience Supplement 1995, S-2.
(15)
"Humans Destroying Species ..." (14 November 1995), p. A9.
(16)
House of Commons, Evidence of the Standing Committee on Environment
and Sustainable Development, Session 108, 26 April 1995, p. 108:9.
(17)
Environment Canada, Biodiversity Science Assessment Team, Biodiversity
in Canada: A Science Assessment, Summary, edited by A. Keith, 1994,
p. 11.
(18)
Ibid., p. 9.
(19)
Ibid., p. 14.
(20)
Ibid., p. 15.
(21)
House of Commons, Evidence of the Standing Committee on Environment
and Sustainable Development, Session 108, 26 April 1995, p. 108:7.
(22)
Committee on the Status of Endangered Wildlife in Canada, Update on
Species at Risk in Canada, Press Release, 18 April 1996, Ottawa,
2 p.
(23)
Committee on the Status of Endangered Wildlife in Canada, Canadian
Species at Risk - April 1996, Ottawa, 18 p.
(24)
Wildlife Ministers Council of Canada, A Wildlife Policy for Canada,
1990, p. 8.
(25)
Agence Science-Presse, "Espèces menacées: la contrebande prend du
poil de la bête," Franc-Vert, Vol. 12, No. 5, October-November
1995, p. 12.
(26)
K. Douglas, Endangered Species in Canada, Library of Parliament,
15 April 1991, p. 16.
(27)
Environment Canada, Canadian Wildlife Service, The Canadian Endangered
Species Protection Act: A Legislative Proposal, 1995, p. 4.
(28)
The Sierra Legal Defence Fund, Recommendations for Federal Endangered
Species Legislation, prepared for the Endangered Species Coalition,
25 April 1995, p. 11.
(29)
House of Commons, Debates, Statement by Paul de Villers on Bill
C-275, 20 June 1995, p. 14258.
(30)
The Sierra Legal Defence Fund (1995), p. 9.
(31)
J.P. Foley and L.S. Maltby, A Summary of Endangered Species and Related
Legislation, Environment Canada, Canadian Wildlife Service, Draft,
15 February 1995, p. 17-22.
(32)
The Sierra Legal Defence Fund (1995), p. 31.
(33)
House of Commons, Evidence of the Standing Committee on Environment
and Sustainable Development, Session 108, 26 April 1995, p. 108:10.
(34)
The Sierra Legal Defence Fund (1995), p. 9.
(35)
Foley and Maltby (1995), p. 20.
(36)
Ibid., p. 17.
(37)
G. Lamoureux, "Plantes menacées: un moment historique," La
Presse, 10 April 1995, p. B4.
(38)
An Act respecting threatened or vulnerable species, R.S.Q. 1994, c. E-12.01.
(39)
L.-G. Francoeur, "Pas de mini-centrale sur le Richelieu," Le
Devoir, 9 December 1994, p. A3.
(40)
M. Kriz, "Caught in the Act," National Journal, 16 December
1995, p. 3092.
(41)
S. Elgie, "Does Canada Need an Endangered Species Law? Lessons from
the United States," Recovery: An Endangered Species Newsletter,
Canadian Wildlife Service, Winter, 1994, p. 6.
(42)
G. Byrne, "Strengthened Endangered Species Act Passes," Science,
Vol. 242, 14 October 1988, p. 190.
(43)
Elgie (1994), p. 6.
(44)
Foley and Maltby (1995), p. 28.
(45)
Douglas (1991), p. 13.
(46)
National Wildlife Federations Endangered Species Program, Economics
and the ESA: Flexibility and Balance, Gopher Text.
(47)
House of Commons, Evidence (26 April 1995), p. 108:12.
(48)
L. G. Francoeur, "La chouette tachetée, emblème dune croisade
sans fin? Les républicains remettent en question les gains des écologistes,"
Le Devoir, 4 July 1995.
(49)
J. P. Drapeau, "Se prendre pour Noé... ou laisser faire?", Franc-Vert,
Vol. 9. No. 3, May, June, July 1992, p. 12.
(50)
National Wildlife Federations Endangered Species Program, The
Endangered Species Act: Myth vs. Reality, Gopher Text.
(51)
Serge Beaucher, "Suivre les animaux, à la molécule," Franc-Vert,
December 1995 - January 1996, p. 16-19.
(52)
T. Eisner, J. Lubbchenco, E.O. Wilson, D.S. Wilcove and M.J. Bean, "Building
a Scientifically Sound Policy for Protecting Endangered Species,"
Science, Vol. 268, 1 September 1995, p. 1232.
(53)
Ibid.
(54)
G.N. Backhouse and Tim W. Clark, "Endangered Species Conservation
in Australia: A Partial Review and Recommendations," Endangered
Species Update, Vol. 12, No. 8, 1995, 6 p on Internet.
(55)
Foley and Maltby (1995), p. 27.
(56)
Ibid., p. 28.
(57)
The Sierra Legal Defence Fund (1995), p. 22-23-26.
(58)
A. Debièvre, "Les enjeux de la directive "Habitats," LEnvironnement,
No. 1545. March 1996, Administration et Nature, p. 12-15.
(59)
Environment Canada, Canadian Wildlife Service, Endangered Species Legislation
in Canada: A Discussion Paper, 17 November 1994, p. 4-5.
(60)
C. Dauphiné, "Does Canada Need an Endangered Species Law: How Current
Laws Apply," Recovery: An Endangered Species Newsletter, Canadian
Wildlife Service, Winter 1994, p. 7.
(61)
Environment Canada, Canadian Wildlife Service (1994), p. 6.
(62)
Ibid., p. 5.
(63)
Bill C-303, An Act respecting endangered species and biological diversity,
Mr. Wenman, House of Commons, First Reading, 2 October 1991.
(64)
Bill C-275, An Act respecting the protection and rehabilitation of endangered
and threatened species, Mr. Caccia, House of Commons, First Reading, 28 September
1994.
(65)
Environment Canada, Canadian Wildlife Service, Report on Public Consultation:
A National Approach to Endangered Species Conservation in Canada,
102 p.
(66)
P. Gingras, "Les scientifiques réclament une loi fédérale musclée
sur les espèces menacées," La Presse, 23 November
1995, p. A10.
(67)
Canadian Endangered Species Coalition, Fact Sheet on Critical Habitat
Protection, CESC Web Site established 2 February 1995, 2 p. on
the Internet.
(68)
The Sierra Legal Defence Fund (1995), p. 31.
(69)
Canadian Endangered Species Coalition, Fact Sheet on Critical Habitat
Protection, CESC Web Site established 2 February 1995, 2 p. on
the Internet.
(70)
Sheila Forsyth, Evidence of the Standing Committee of the House of
Commons on Environment and Sustainable Development, Forum on the Status
of Wildlife and Habitats in Canada, 27 April 1994, p. 4-5.
(71)
Ibid.
(72)
The Sierra Legal Defence Fund (1995), p. 66-67.
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