The SARA Saga, or

Can You lead an (endangered) horse to water and make it drink?

Stewart Elgie

University of Ottawa, Faculty of Law and Director, Institute of Environment

Species At Risk Act (SARA)

6th great extinction shock – Over 1,000 times ‘natural’ rate

– Big threat is loss of habitat (>80%)

The most significant env’t law passed by Parliament in 20 years

Not just about critters – Canada’s key ecosystem law

Purpose: “to prevent wildlife species from becoming extinct, [and] to provide for the recovery of species that are endangered or threatened …”

SARA Saga

‘92: Canada signs Rio Biodi Convention

7 year campaign (ENGOS, scientists)

- Aboriginal support and involvement - Major media coverage

Task Force (multi-stakeholder) - Agreed on End Spec Bill (ex. one point)

3 bills (‘96-01); 2 died w/ early elections

Sausage making: – Final law rewritten (extensively) by Env.

Committee (with all-party support),

– un-rewritten by Env Minister, then partly fixed by PMO at 11th hour

i.e. It’s a bit messy (in places)

SARA: Flow Chart (condensed)

T + 9(?) months

GIC Lists species at risk (+ reasons if ‘no’)

Time = 0

COSEWIC proposes listing (incl. ATK)

T + 1-2 years

Recov. Strategy, must ID critical habitat (‘to extent possible’)

T + 6 months

Fed areas: Minister must prohibit CH destruction (unless already ‘protected’)

T + ??

Prov’l areas: GIC may apply safety net if no prov’l ‘effective protecton’

Stewardship Agreement

Permit (3 part test) - All rbl alternatives - All fsbl mitigation - Won’t ‘jeopardize’

=

Action Plan (T + ??) Measures to protect species & habitat

SARA’s Structure / Aim

Aim is to make listing & protection the norm, with limited ‘off ramps’ …

... to drive people into permit/agreement process, which impose conditions for managing land/water

But if off ramps are too wide, never get there

Not List

Don’t ID CH

CH not protected

Get permit/ agreement w/ mgmt conditions

COSEWIC finds species at risk

No recov strategy

SARA Study

Legal + Science Team @ uOttawa - with CWS support (to 2008/9)

2005-2012 Track SARA implementation, and factors explaining decisions to not list/protect

Examined (mainly) – COSEWIC recommendations – GIC Listing – Recov strategies – Crit Hab identify & protect

All results are preliminary

Has SARA had any effect on the likelihood of change in status on reassessment?

The proportion of species showing higher status on reassess-ment has increased slightly since SARA.

Change in status at most recent reassessment

Increase No change Decrease

Pro

po

rtio

n

0.0

0.1

0.2

0.3

0.4

0.5

0.6

Pre-Pre SARA

Pre-Post SARA

1. COSEWIC (assess and recommend)

Has SARA had an effect on the likelihood of COSEWIC accepting a status report recommendation?

COSEWIC usually makes the same status finding as the status report author(s), and this has not changed pre-post SARA.

Sample

Pre-SARA Post-SARA

Pro

po

rtio

n o

f a

cce

pte

d

auth

or

reco

mm

end

atio

ns

0.0

0.2

0.4

0.6

0.8

1.0

1. COSEWIC - Diagnosis

COSEWIC is ‘not broke’

The goal of separating species diagnosis (science/ATK) from prescription (political) seems to be working, at listing stage

- COSEWIC not (too) affected by politics

2. GIC Listing

Tug-of-war drafting history

– Discretion (Original)

– Mandatory (Committee)

– ‘Negative option’ (Final)

GIC must respond in 9 months

– Give reasons if not list

– Silence = listing

2. GIC Listing

Good news … Over 85% of species listed Accountability provisions’ are working – Works much better than pure discretion

Bad news … Delays: Gov often ‘extends’ SARA’s 9 month time limit (18 months – 4+ years) - Ok for aboriginal consultation, but abused …

3 key predictors of non-listing – DFO (cod) – Nunavut (northern beluga whale) – Commercial harvest (plains bison) – But NOT habitat conflicts

Listing Approach % of COSEWIC species Listed

Constrained Discretion (Fed & NF) 87%

Full discretion (most provinces) 35%

3. Recovery Strategies

SARA requires a RS in 1 year after listing for EN, 2 years for TH and EX species

– Then ‘action plan’ at future date (no deadline)

The government is WAY behind in completing RSs. Most species take years to get one.

- Partly due to big initial backlog, and resources

RSs Due (by Law) RSs completed Percent done Done on Time

362 170 (+25 draft) 47% (54%) 26 (7%)

4. Critical Habitat ID

Habitat loss is key threat to over 80% of Species At Risk

Another tug-of-war section

Recovery Strategy must ID CH “to the extent possible” – Best information

– Precautionary principle

Most species are not getting CH ID’d (so no habitat protection) - Very few get full CH ID

- Getting bit better lately

CH ID’d?

Full 25 13%

Partial 69 35%

None 101 52%

5. CH Protection

Another tug-of war section – Revised by PMO at 11th hour

In federal protected areas… - All ID’d CH must be protected

In other ‘federal’ lands and waters … – Must protect CH (if ID’d) for species 180 days after RS,

unless already protected by fed law

Very few species have gotten additional habitat protection under SARA so far (starting to change?)

Species w/ CH ID (final)

CH ID’d in fed protected area

‘Already protected’ (= no SARA prot’n)

SARA habitat prot’n applied

Other (no fed land/ water?)

77 23 7 (?) 1 46

6. Safety Net

Env Committee lost on this one – All its changes taken out by PMO

Minister must recommend safety net if province not providing ‘effective protection’ – Important because >60% of species are ‘prov’ – But GIC has full discretion on applying it – No time limit; No criteria for prov’l “protection”

Never applied – Not even a Ministerial finding – So no pressure on provs to act

(most provs are doing more since SARA)

SARA: Adding it up

Silver linings? – Rate of RS completion &CH ID improving – Gov considering more CH orders (?) – Gov renewed SARA funding last budget

Less than 1% of end. species are getting any additional fed habitat protection under SARA so far. BAD!

Why?

How to improve? 0

100

200

300

400

500

600

COSEWICspecies

SARA listed RecoveryStrategy

Crit Habitatidentified

Crit Habitatprotected

(fed species)

Safety Netapplied

Pe

rce

nta

ge

(o

f C

OS

EW

IC s

pe

cie

s)

SARA and Habitat Protection (to date)