Report on steps taken and protection of critical habitat for species at risk in Canada

Document information

Recommended citation: Environment and Climate Change Canada. 2019. Report on Critical Habitat Protection for Species at Risk in Canada. Species at Risk Act Critical Habitat Report Series. Environment and Climate Change Canada, Ottawa.

For copies of this report, or for additional information on species at risk, including the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) Status Reports, residence descriptions, action plans, and other related recovery documents, please visit the Species at Risk (SAR) Public Registry.

Également disponible en français sous le titre « Rapport sur la protection de l’habitat essentiel des espèces en péril au Canada »

Introduction

The purposes of the Species at Risk Act (SARA) are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity, and to manage species of special concern to prevent them from becoming endangered or threatened.

The responsibility for conservation of species at risk is shared by both levels of government in Canada. The Government of Canada first looks to the provinces and territories for the protection of terrestrialFootnote 1  species’ habitat on non-federally administered landsFootnote 2 . The federal government is responsible for critical habitat protection for all species on federal landsFootnote 3 . However, SARA allows the Government of Canada to put in place protection of critical habitat on non-federally administered lands in specific circumstances.

SARA contains provisions related to the identification and protection of critical habitat, i.e. “the habitat that is necessary for the survival or recovery of a listed wildlife species that is identified as the species’ critical habitat in the recovery strategy or action plan”. Under Section 63 of SARA, the Minister of Environment and Climate Change Canada (ECCC) must report on the steps taken to protect critical habitat of terrestrial species.

In April 2018, the Government of Canada published the first report under section 63 of SARA on unprotected critical habitat for the Woodland Caribou (Rangifer tarandus caribou), Boreal population. In May 2018, the Minister of Environment and Climate Change announced her commitment to track and report on critical habitat protection for other terrestrial species at risk with critical habitat identified on non-federal lands. In fulfillment of this commitment, this first multi-species report: 1) reviews the extent to which existing legislation can prevent the destruction of critical habitat of listed species at risk that is identified on non-federal lands in the provinces and on territorial lands; 2) describes steps taken to protect and conserve critical habitat for species at risk on non-federal lands in the provinces and on territorial lands and 3) presents a list of the species to which this report applies.

Approach

To conduct the legislation reviews that are summarized by province and territory in the sections below, ECCC identified broadly relevant provincial and territorial legislation that could impact wildlife or land use management. ECCC then considered whether these laws and regulations include prohibitions that are consistent with the purposes of SARA (e.g., prohibition on destruction or damage to habitat for wildlife species at risk, prohibition of certain activities that would result in a habitat disturbance or a change in the landscape, etc.), offences, enforcement measures and penalties, as well as appropriate constraints on discretion, permitting authorities or other potential limitations, exceptions or exemptions to the application of the relevant prohibitions.

Within each provincial/territorial summary is the list of legislation that was reviewed by ECCC. Summary descriptions of species at risk specific acts or regulations where stand alone legislation exists, are presented, as well as any other acts that have the potential to provide area-based provisions that could prevent activities likely to result in the destruction of critical habitat. In addition, the extent to which other acts can provide some protection against specific threats and activities is also presented. Finally, the report provides a summary of steps that each jurisdiction has indicated are being taken to protect critical habitat identified in federal recovery strategies or action plans for federally listed species at risk.

ECCC documented this analysis with detailed reviews for each jurisdictionFootnote 4, which were then shared with provincial and territorial government officials for review. ECCC then summarized the reviews, taking into consideration provincial and territorial input, including information on steps and measures that provinces and territories indicated are being taken and put in place to protect critical habitat of federally listed terrestrial species at risk. The draft report was then sent to the provinces and territories for a second round of engagement.

ECCC acknowledges that provinces and territories have multiple acts and regulations which provide tools that can be used to protect critical habitat. Analyzing these laws individually and comparing them to SARA may not represent the complete picture of the variety and overlap of tools that the provincial and territorial governments can use to protect habitat for species at risk.

The list of species in each jurisdiction to which this report applies can be found in Annex A. This list represents all terrestrial species currently listed on Schedule 1 of SARA as threatened or endangered for which critical habitat has been identified on non-federal land or on territorial land in a final federal recovery strategy or action planFootnote 5 , excluding Woodland Caribou, Boreal population (boreal caribou). Information pertaining to boreal caribou may be found in the progress report on critical habitat protection for boreal caribou published on the SAR Public Registry. As no additional species other than boreal caribou have critical habitat identified in the Yukon and Northwest Territories, the following report does not have content pertaining to these two territories.

Note that, in the Yukon and Northwest Territories, devolution agreements have given administration and control of large portions of land to the Yukon and Northwest Territories governments. Such an agreement is under negotiation for Nunavut. The federal government is working with the governments of the Yukon, Northwest Territories and Nunavut, Indigenous governments and organizations, and northern Wildlife Management Boards to develop a path forward for protection of critical habitat on devolved lands (also known as territorial lands) and on non-federally administered lands in Nunavut, in a manner that respects the intent of devolution.

1. Provincial protection of critical habitat on non-federal lands

1.1 British Columbia

In British Columbia, there are 83 species at risk with federally identified critical habitat to which this report relates (see Annex A1).

Summary of legislation review

For British Columbia, ECCC reviewed the following provincial acts and their regulations: the Ecological Reserve Act, the Parks Act, the Environment and Land Use Act, the Wildlife Act, the Muskwa Kechika Management Area Act, the Land Act, the Forest Act, the Forest and Range Practices Act, the Petroleum and Natural Gas Act, the Oil and Gas Activities Act, the Coal Act, the Mineral Tenure Act, the Mines Act, the Geothermal Resources Act, the Transportation Act, the B.C. Environmental Assessment Act, the Environmental Management Act, the Water Sustainability Act, the Heritage Conservation Act, the Agricultural Land Commission Act, the Farm Practices Protection (Right to Farm) Act, the Private Managed Forest Land Act, a Community Charter of the Local Government Act, the Riparian Areas Protection Act, and the Land Title Act.

The Government of British Columbia does not currently have stand-alone species at risk legislation, and the purpose of most provincial land use legislation in BC is to manage industrial and commercial activities, including the environmental effects of those activities. As such, there is no single piece of legislation that has a specific purpose of protecting critical habitat, but habitat for various species at risk is explicitly considered in the designation and application of some of the legislative instruments discussed here.

The Ecological Reserve Act, the Park Act, the Wildlife Act, and their associated regulations include provisions that could, in some circumstances, result in an outcome that is consistent with that of the SARA prohibition on critical habitat destruction within ecological reserves, in conservancies or provincial parks, and in wildlife management areas respectively. However, the scope of lands covered by these Acts is limited, and the discretion to authorize activities likely to result in the destruction of critical habitat is not subject to constraints consistent with those under SARA, except within ecological reserves.

On non-federal lands outside of the above listed provincial protected areas, it is recognized that other pieces of legislation in British Columbia may be capable of preventing specific activities from destroying critical habitat in some circumstances. However, for the legislation reviewed through this process, the scope of prohibitions is limited and any constraints on the authorization of otherwise prohibited activities (e.g., the issuance of permits) are not consistent with those provided for under SARA.

Steps taken by the province of British Columbia

Steps taken by the Government of British Columbia that relate to the protection and conservation of critical habitat are outlined below.

1.2 Alberta

In Alberta, there are 21 species at risk with federally identified critical habitat to which this report relates (see Annex A2).

Summary of legislation review

For Alberta, ECCC reviewed the following provincial laws and their associated regulations: Wildlife Act, Wilderness Areas, Ecological Reserves, Natural Areas and Heritage Rangelands Act, Willmore Wilderness Park Act, Provincial Parks Act, Alberta Land Stewardship Act, Forests Act, Public Lands Act, Mines and Minerals Act, Environmental Protection and Enhancement Act, and the Water Act.

The Government of Alberta does not have stand-alone species at risk legislation. The Wildlife Act and its Wildlife Regulation are the primary provincial legislative tools that address wildlife management in Alberta. The Act does not contain prohibitions against the destruction of habitat, but it enables the minister to make regulations respecting the protection of wildlife habitat and endangered species. Specifically, the Wildlife Regulation is the only regulation that includes provisions related to endangered animals. However, these provisions are limited, as they only prohibit the willful molestation, disturbance, or destruction of a house, nest or den. Of the 21 terrestrial species listed federally on Schedule 1 of SARA in Alberta with critical habitat identified on non-federal lands, 11 are prescribed as endangered species in the regulation (see Annex A2). Note that an additional 3 species are prescribed as non-game animals in the regulation, and are subject to similar provisions as endangered species.

The Wilderness Areas, Ecological Reserves, Natural Areas and Heritage Rangelands Act, the Provincial Parks Act and the Willmore Wilderness Park Act include provisions that could result in an outcome that is consistent with that of the SARA prohibition on critical habitat destruction in wilderness areas, ecological reserves, wildland provincial parks, and within Willmore Wilderness Park respectively. However, the scope of lands covered under these Acts is limited and the discretion to authorize other activities likely to result in the destruction of critical habitat within these areas is not subject to constraints that are fully consistent with those under SARA.

On non-federal lands outside of the above listed provincial protected areas, it is recognized that other pieces of legislation in Alberta may be capable of preventing specific activities from destroying critical habitat in some circumstances. However, for the legislation reviewed through this process, the scope of prohibitions is limited and any constraints on the authorization of otherwise prohibited activities (e.g., the issuance of permits or approvals) are not consistent with those provided for under SARA.

Steps taken by the province of Alberta

Steps taken by the Government of Alberta that relate to the protection and conservation of critical habitat are outlined below.

1.3 Saskatchewan

In Saskatchewan, there are 19 species at risk with federally identified critical habitat to which this report relates (see Annex A3).

Summary of legislation review

For Saskatchewan, ECCC reviewed the following provincial laws and their associated regulations: The Wildlife Act, 1998, The Environmental Management and Protection Act, The Provincial Lands Act, 2016, The Parks Act, The Wildlife Habitat Protection Act, The Conservation Easement Act, The Water Security Agency Act, and The Environmental Assessment Act.

The Government of Saskatchewan does not have stand-alone species at risk legislation. Rather, The Wildlife Act, 1998 and its Wild Species at Risk Regulations are the primary provincial legislative tools that can address wildlife habitat and species at risk in the province. The Wildlife Act, 1998 allows for the Lieutenant Governor in Council to make regulations that designate an area of the province to protect wildlife and their habitat, however, the Act also includes provisions to authorize activities in these areas which are not subject to constraints consistent with those under SARA. The Wild Species at Risk Regulations is the only regulation that includes provisions regarding species at risk; however, the prohibition is limited to the disturbance of the den, house, nest, dam or usual place of habitation of vertebrate wild species at risk. As well, of the 19 terrestrial species listed federally on Schedule 1 of SARA in Saskatchewan with critical habitat identified on non-federal lands, 9 are designated in the regulation as extirpated, endangered or threatened wild species at risk (see Annex A3).

The Provincial Lands Act, 2016 and The Conservation Easement Act include provisions that could result in an outcome that is consistent with that of the SARA prohibition on critical habitat destruction in Ecological Reserves, Representative Area Ecological Reserves (RAER) and on land that is under a crown conservation easement, respectively. However, the scope of lands covered under these Acts is limited and each area would need to be assessed individually in conjunction with species-specific details due to the specific provisions associated with each designated reserve and easement.

On non-federal lands outside of ecological reserves, RAER and crown conservation easements, it is recognized that other pieces of legislation in Saskatchewan may be capable of preventing specific activities from destroying critical habitat in some circumstances. However, for the legislation reviewed through this process, the scope of prohibitions is limited and any constraints on the authorization of otherwise prohibited activities (e.g., the issuance of permits or approvals) are not consistent with those provided for under SARA.

Steps taken by the province of Saskatchewan

Steps taken by the Government of Saskatchewan that relate to the protection and conservation of critical habitat are outlined below.

1.4 Manitoba

In Manitoba, there are 19 species at risk with federally identified critical habitat to which this report relates (see Annex A4).

Summary of legislation review

For Manitoba, ECCC reviewed the following provincial laws and their associated regulations: The Endangered Species and Ecosystems Act, The Environment Act, The Wildlife Act, The Provincial Parks Act, The Ecological Reserves Act, The East Side Traditional Lands and Special Protected Areas Act, The Crown Lands Act, and The Water Rights Act.

On non-federal lands, The Endangered Species and Ecosystems Act (ESEA) is the primary provincial legislative tool to protect species at risk and their habitat. There are 19 terrestrial species federally listed on Schedule 1 of SARA in Manitoba with critical habitat identified on non-federal lands that are covered in this report. Of these, 18 species are designated under the ESEA regulations as endangered or threatenedFootnote 6 (see Annex A4). In general, the ESEA includes prohibitions against destroying, disturbing or interfering with the habitat of listed endangered or threatened species. However, the ESEA includes exemptions for developments and licenses under The Environment Act with constraints that are comparable, but not fully consistent, with SARA. In addition, Manitoba has not required proponents to apply for exceptions under the ESEA for development projects licensed under The Environment Act. The ESEA also includes provisions for designating endangered or threatened ecosystems as protected through ecosystem preservation zones, which would apply to any overlapping critical habitat. However, as of March 2019, no ecosystem preservation zones had been designated.

Additionally, the Ecological Reserves Act and The Provincial Parks Act includes provisions that could result in an outcome that is consistent with that of the SARA prohibition on critical habitat destruction in ecological reserves, and certain zones within provincial parks. However, the scope of lands covered under these Acts is limited and the discretion to authorize other activities likely to result in the destruction of critical habitat is not subject to constraints that are fully consistent with those under SARA.

On non-federal lands outside of ecological reserves, it is recognized that other pieces of legislation in Manitoba may be capable of preventing specific activities from destroying critical habitat in circumstances. However, for the legislation reviewed through this process, the scope of prohibitions is limited and any constraints on the authorization of otherwise prohibited activities (e.g., the issuance of permits or approvals) are not consistent with those provided for under SARA.

Steps taken by the province of Manitoba

Steps taken by the Government of Manitoba that relate to the protection and conservation of critical habitat are outlined below.

1.5 Ontario

In Ontario, there are 80 species at risk with federally identified critical habitat to which this report relates (see Annex A5).

Summary of legislation review

For Ontario, ECCC reviewed the following provincial laws: The Endangered Species Act, 2007 (ESA 2007), the Environmental Assessment Act (EAA), the Planning Act and Provincial Policy Statement (PPS), the Conservation Authorities Act, the Provincial Parks and Conservation Reserves Act (PPCRA), the Far North Act (FNA)Footnote 7 , the Crown Forest Sustainability Act (CFSA), the Public Lands Act (PLA), and the Fish and Wildlife Conservation Act (FWCA).

On June 6, 2019, the Government of Ontario approved amendments to the Endangered Species Act, 2007. Key changes relate to protection, timelines for listing and recovery actions, and the creation of a Species at Risk Conservation TrustFootnote 8 . Given the short time period between the amendments to the ESA and the publication of this report, the review is based on the ESA 2007. A summary of the ESA amendments will be included in the subsequent report.

On non-federal lands, the Endangered Species Act, 2007. Key changes relate to protection, timelines for listing and recovery actions, and the creation of a Species at Risk Conservation Trust has been the primary provincial legislative tool that can protect habitat for species at risk. Of the 80 terrestrial species federally listed on Schedule 1 of SARA with critical habitat identified on non-federal lands in Ontario covered in this report, 76Footnote 9  species receive habitat protection under the ESAFootnote 10  (see Annex A5). ESA 2007 has provided prohibitions against the damage and destruction of species at risk habitat that were broadly consistent with the prohibitions under SARA, with similar constraints on permitting as exist under SARA. However, the habitat protected under the ESA 2007 had the potential to vary from the identified critical habitat under SARA because of differences in legislation and approaches, in some cases leading to differences in location, type, or amount of habitat protected. Additionally, there were regulatory exemptions with rules-in-regulation under the ESA 2007 that allowed certain activities to occur that would otherwise be prohibited under the ESA 2007, provided that conditions and requirements outlined in the regulation were adhered to, such as avoiding impacts to species and their habitats, minimizing adverse effects and completing beneficial actions to the species. Some regulatory exemptions may not have always been fully consistent with the exemptions set out in SARA. Non-compliance with the conditions specified in a regulatory exemption under the ESA 2007 could have resulted in similar penalties as non-compliance with the terms and conditions of permits issued under the ESA 2007.

Should a species not receive habitat protection under the ESA (or habitat is described differently than critical habitat), the Provincial Parks and Conservation Reserves Act, 2006 and the Far North Act provide for prohibitions on major industrial activities that are generally expected to result in an outcome that is broadly consistent with that of the SARA prohibition for critical habitat that occurs within provincial parks, conservation reserves, and dedicated protected areas. However, the scope of lands covered under these Acts is limited and the discretion to authorize other activities likely to destroy critical habitat within these areas is not subject to constraints that are fully consistent with those under SARA.

On non-federal lands outside of provincial parks, conservation reserves and dedicated protected areas, it is recognized that other pieces of legislation may be capable of preventing specific activities from destroying critical habitat in some circumstances, but they do not provide constraints consistent with those provided for under SARA.

Steps taken by the province of Ontario

Steps taken by the Government of Ontario that relate to the protection and conservation of critical habitat for species at risk are outlined below.

1.6 Quebec

In Quebec, there are 20 species at risk with federally identified critical habitat to which this report relates (see Annex A6).

Summary of legislation review

For Quebec, ECCC reviewed the following provincial legislation: the Act respecting threatened or vulnerable species (LEMV), the Act respecting the conservation and development of wildlife (LCMVF), the Natural Heritage Conservation Act, the Parks Act, the Environment Quality Act, the Act to affirm the collective nature of water resources and to promote better governance of water and associated environments, the Act respecting the conservation of wetlands and water bodies, the Act respecting land use planning and development, including certain provisions of the Municipal Powers Act and the Act respecting the preservation of agricultural land and agricultural activities, and the Sustainable Forest Development Act.

In Quebec, there are approaches and strategies for the conservation and protection of species at risk, including specific laws and regulations. Most of the species listed in Schedule 1 of SARA are also designated as threatened or vulnerable, or as likely to be so designated, under the LEMV (see Annex A6)Footnote 12 . However, unlike SARA, there is no obligation to designate or protect habitats necessary for the survival or recovery of a species. In addition, although the LEMV and the LCMVF apply in principle to both private and public lands, the Regulation respecting wildlife habitats (RHF) limits the designation of wildlife habitats to land in the domain of the State. It is therefore not currently possible to legally protect the habitat of a threatened or vulnerable wildlife species on private land under these laws. However, steps are being taken to modernize the RHF and review these provisions.

In addition, there are several tools available to create different types of protected areas, taking into account the characteristics of the targeted areas (e.g., ownership, use, species present). The degree of protection varies depending on the type of protected area, but in some cases, the provisions allow a level of protection similar to that of SARA. Moreover, the designation of protected areas is an element of the Quebec Government’s strategy to promote sustainable development and the protection of biodiversity, including species at risk. However, with few exceptions, the areas of critical habitat covered by protected areas are generally very small. Quebec has committed to achieving the target of 17% by 2020, but according to available information, protected areas currently represent only 9.72% of the province’s territory.

Finally, it is recognized that other pieces of legislation may be capable of preventing specific activities from destroying critical habitat in some circumstances. However, although species designated as threatened or vulnerable and their habitats, as well as species likely to be so designated, are considered in most cases, the power to authorize these activities (e.g. issuance of permits or approvals) is not subject to constraints that are consistent with those under SARA.

Steps taken by the province of Quebec

Steps taken by the Government of Quebec that relate to the protection and conservation of critical habitat for species at risk are outlined below.

1.7 New Brunswick

In New Brunswick, there are 11 species at risk with federally identified critical habitat to which this report relates (see Annex A7).

Summary of legislation review

For New Brunswick, ECCC reviewed the following provincial laws: Species at Risk Act, Fish and Wildlife Act, Protected Natural Areas Act, Parks Act, Conservation Easement Act, Clean Environment Act, Clean Water Act, Trespass Act, and the Crown Lands and Forest Act.

On non-federal lands, the Species at Risk Act (NB SARA) is the primary provincial legislative tool that can protect habitat for species at risk. The Act provides the Government of New Brunswick with the power to protect species at risk habitat by regulation or by order but only at the discretion of the Minister. There are currently eleven terrestrial species at risk federally listed on Schedule 1 SARA in New Brunswick with critical habitat identified on non-federal land that are covered in this report (see Annex A7). Of these, four speciesFootnote 13  may receive habitat protection under the NB SARA through transitional provisions (habitat protection was extended to the fifteen species listed under the Endangered Species Act, which was repealed when the Species at Risk Act was introduced in 2012). However, to date, no regulations have been made or orders issued in respect to the designation or protection of species at risk habitat under this Act.

Should a species at risk not receive habitat protection under the New Brunswick Species at Risk Act, the Protected Natural Areas Act includes provisions that could result in an outcome that is consistent with that of the SARA prohibition for species at risk habitat that occurs within Protected Natural Areas. Additionally, although the Parks Act includes prohibitions against activities that could result in the destruction of species at risk habitat, the discretion to authorize such activities within provincial Parks is not subject to constraints that are consistent with those under SARA.

The Conservation Easements Act, individual easements could include prohibitions against activities likely to result in the destruction of species at risk habitat. However, the limited scope of the Act and the lack of clear offences and penalties makes the Act unlikely to result in an outcome that is consistent with that of the SARA prohibition for species at risk habitat that occurs under conservation easements.

On non-federal lands outside of Natural Protected Areas and provincial Parks, and lands under a Conservation Easement, it is recognized that other pieces of legislation may be capable of preventing some activities from destroying species at risk habitat in some circumstances. For example, the Trespass Act could provide protection for species at risk habitat located in wetlands and on land adjacent to lake and ocean shorelines from trespass with a motor vehicle. However, for the pieces of legislation reviewed through this process, the scope of prohibitions is limited and the constraints on discretion on the authorization of otherwise prohibited activities (e.g., the issuance of permits or approvals) are not consistent with the prohibitions and constraints on discretion provided for under SARA.

Steps taken by the province of New Brunswick

Steps taken by the Government of New Brunswick that relate to the protection and conservation of critical habitat for species at risk are outlined below.

1.8 Nova Scotia

In Nova Scotia, there are 13 species at risk with federally identified critical habitat to which this report relates (see Annex A8).

Summary of legislation review

For Nova Scotia, ECCC reviewed the following provincial laws and their regulations: Endangered Species Act, Wildlife Act, Beaches Act, Conservation Easements Act, Forests Act, Provincial Parks Act, Special Places Protection Act, the Wilderness Areas Protection Act, and the Environment Act.

On non-federal lands, the Endangered Species Act (ESA) is the primary provincial legislative tool that can protect habitat for species at risk. The Act has prohibitions against the destruction of residence such as nests or hibernacula, including dwellings that are anthropocentric structures. The Act also provides the mechanism (through regulation or an order) to list prohibitions against the destruction of species at risk habitat on non-federal lands. There are currently thirteen terrestrial species at risk federally listed on Schedule 1 of SARA in Nova Scotia, all of which are also listed under the Nova Scotia Endangered Species Act, with critical habitat identified on non-federal land that are covered in this report (see Annex A8). However, no regulations or orders protecting species at risk habitat have been issued under this Act.

Should a species not receive habitat protection under the Endangered Species Act, the Wilderness Areas Protection Act, the Brothers Islands Wildlife Management Regulations (under the Wildlife Act), and the Special Places Protection Act include provisions that could result in an outcome that is consistent with that of SARA prohibitions for species at risk habitat. Although an enforcement authority (e.g. conservation officer) is not identified under the Special Places Act, a police officer could potentially enforce the Act. Additionally, although the Provincial Parks Act includes prohibitions against activities that could result in the destruction of species at risk habitat, the discretion to authorize such activities within provincial parks is not subject to constraints that are consistent with those under SARA.

Under the Conservation Easements Act, individual easements could include prohibitions against activities likely to result in the destruction of species at risk habitat. However, the limited scope of the Act and the lack of clear offences and penalties makes the Act unlikely to result in an outcome that is consistent with that of the SARA prohibition for species at risk habitat that occurs under conservation easements.

On non-federal lands outside of Wilderness Areas, the Brothers Islands, designated Special Places and lands under a Conservation Easement, it is recognized that other pieces of legislation may be capable of preventing some activities from destroying species at risk habitat. However, for the remaining pieces of legislation reviewed through this process, the scope of prohibitions is limited and the constraints on discretion on the authorization of otherwise prohibited activities (e.g., the issuance of permits or approvals) are not consistent with the prohibitions and constraints on discretion provided for under SARA.

Steps taken by the province of Nova Scotia

Steps taken by the Government of Nova Scotia that relate to the protection and conservation of critical habitat for species at risk are outlined below.

1.9 Prince Edward Island

In Prince Edward Island, there are 2 species at risk with federally identified critical habitat to which this report relates (see Annex A9).

Summary of legislation review

For Prince Edward Island, ECCC reviewed the following provincial laws: the Wildlife Conservation Act, Natural Areas Protection Act, Recreation Development Act, Environmental Protection Act, and the Planning Act.

On non-federal lands, the Wildlife Conservation Act is the primary provincial legislative tool that can protect habitat for species at risk. The Act provides the Government of Prince Edward Island with the power to protect the habitat of species at risk that have been designated (at the discretion Lieutenant Governor in Council) as a threatened or endangered species. There are two terrestrial species at risk federally listed on Schedule 1 of SARA in Prince Edward Island with critical habitat identified on non-federal land that are covered in this report (see Annex A9). To date, no regulations have been made under the Wildlife Conservation Act to designate a species at risk. Species at risk habitat could also, potentially, be protected on private land under an agreement with a private landowner which may impose a covenant or easement on the private landowner’s land. Unlike, stand-alone easement legislation, which tends to be enforced under common law, such an agreement appears to be enforceable under the Wildlife Conservation Act.

Should a species not receive protection under the Wildlife Conservation Act, the Natural Areas Protection Act includes provisions that could result in an outcome that is consistent with that of the SARA prohibition for species at risk habitat that occurs within natural areas designated under the Act.

On non-federal lands outside of designated natural areas, it is recognized that other pieces of legislation may be capable of preventing activities from destroying species at risk habitat in some circumstances. The Planning Act appears to provide protection for species at risk habitat located on beaches and dunes for most forms of development. However, for the remaining pieces of legislation reviewed through this process, the scope of prohibitions is limited and the constraints on discretion on the authorization of otherwise prohibited activities (e.g., the issuance of permits or approvals) are not consistent with the prohibitions and constraints on discretion provided for under SARA.

Steps taken by the province of Prince Edward Island

Steps taken by the Government of Prince Edward Island that relate to the protection and conservation of critical habitat for species at risk are outlined below.

1.10 Newfoundland and Labrador

In Newfoundland and Labrador, there are 9 species at risk with federally identified critical habitat to which this report relates (see Annex A10).

Summary of legislation review

For Newfoundland and Labrador, ECCC reviewed the following provincial laws: Endangered Species Act, Wild Life Act, Wilderness and Ecological Reserves Act, Provincial Parks Act, Water Resources Act, Labrador Inuit Lands Act, Environmental Protection Act, Lands Act, Forestry Act, the Nunatsiavut Environmental Protection Act, and the Nunatsiavut Exploration and Quarrying Standards Act.

On non-federal lands, the Endangered Species Act (ESA) is the primary provincial legislative tool that can protect habitat for species at risk. The Act enables the Government of Newfoundland and Labrador to make an order to set aside an area of land to be protected as species at risk habitat. There are currently nine species at risk federally listed on Schedule 1 of SARA in Newfoundland and Labrador with critical habitat identified on non-federal land that are covered in this report (see Annex A10). However, no orders have been issued for species at risk under the Endangered Species Act.

Should a species not receive habitat protection under the Endangered Species Act, the Wilderness and Ecological Reserves Act and the Provincial Parks Act both include provisions that could result in an outcome that is consistent with that of the SARA prohibition for species at risk habitat within Ecological Reserves and Provincial Parks respectively.

On non-federal lands outside of Ecological Reserves and Provincial Parks, it is recognized that other pieces of legislation may be capable of preventing some activities from destroying species at risk habitat. However, for the remaining pieces of legislation reviewed through this process, the scope of prohibitions is limited and the constraints on discretion on the authorization of otherwise prohibited activities (e.g., the issuance of permits or approvals) are not consistent with those provided for under SARA.

Steps taken by the province of Newfoundland and Labrador

Steps taken by the Government of Newfoundland and Labrador that relate to the protection and conservation of critical habitat for species at risk are outlined below.

2. Territorial protection of critical habitat

2.1 Nunavut

In Nunavut, there are 2 species at risk with federally identified critical habitat to which this report relates (see Annex A11).

Summary of legislation review

For Nunavut, ECCC reviewed the following territorial laws: the Wildlife Act, the Territorial Parks Act, the Nunavut Land Claims Act and associated draft Nunavut Land Use Plan.

In Nunavut, the Wildlife Act is the main legislative tool that can specifically protect habitat for species at risk. In general, the Wildlife Act provides prohibitions against the destruction of species at risk critical habitat on Public Lands that are broadly consistent with the prohibitions under SARA, with similar constraints on permitting and discretion as exist under SARA. However so far, no species got listed under the Nunavut Wildlife Act and therefore, the two SARA listed species in Nunavut currently do not receive critical habitat protection under the Wildlife Act.

In addition, the draft Nunavut Land Use Plan under the Nunavut Land Claims Act will aim at protecting the integrity of ecosystems, flora and wildlife habitat, through the provision of specific designations of land that will be afforded a high degree of protection. Therefore, should a species not receive habitat protection under the Wildlife Act, the draft Plan includes provisions that could, when implemented, result in an outcome that will be consistent with that of the SARA prohibition against critical habitat destruction in these designations. However, the scope of lands covered under this Plan will be limited, and these designations will be reviewed periodically, therefore the degree of protection of a given area will potentially vary over time.

Finally, on Public Lands outside of those designations, the Territorial Parks Act includes prohibitions against activities that could result in the destruction of critical habitat, but the discretion on the authorization of otherwise prohibited such activities is not subject to constraints that are consistent with those provided for under SARA.

Steps taken by the government of Nunavut

Steps taken by the Government of Nunavut that relate to the protection and conservation of critical habitat for species at risk are outlined below.

2.2 Northwest Territories and Yukon

No species at risk, other than the Woodland Caribou, boreal population, have critical habitat identified in the Yukon of the Northwest Territories. The legislative reviews for those two territories and previous steps taken by their government to protect critical habitat are presented in the previously published reports for the boreal caribou.

3. Federal protection of critical habitat on non-federal lands and territorial lands

Elements of SARA that apply on non-federal lands

Migratory bird sanctuaries are federally managed protected areas that can be established, if there is agreement with the province, on non-federal lands. Under SARA, critical habitat of endangered and threatened migratory birds located in these areas is protected by publishing a description of the critical habitat in the Canada Gazette Part I, including the portions of the critical habitat that are on non-federal lands. Ninety days after that description is published, it becomes prohibited to destroy the critical habitat for the migratory bird, on both federal and non-federal lands within the migratory bird sanctuary.

For species other than migratory birds, and outside of migratory bird sanctuaries, as noted above, the provinces and territories are provided with the first opportunity to protect critical habitat for listed species on provincial, territorial and private land. However, under some circumstances, the Minister must recommend that the Governor in Council (GIC) make an order to prohibit the destruction of critical habitat on non-federal lands. To date, GIC has not made any such orders under SARA.

In other circumstances, the Minister must recommend that the GIC make an emergency order to protect a species if it is facing imminent threats to its survival or recovery. Such orders may identify habitat necessary for the survival or recovery of the species, which can include non-federal land, and may prohibit activities that may adversely affect that habitat.

The final decision on whether or not to make a critical habitat protection order or an emergency order rests with the GIC. When making their decision, the GIC also takes into account socio-economic considerations.

In addition, SARA allows for the use of conservation agreements to protect critical habitat on non-federally administered lands. These agreements can include provisions that result in an outcome that is consistent with that of the SARA prohibition on critical habitat destruction. For critical habitat that is the subject of such agreements, specifically those made under section 11(2)(d), results will be monitored to verify that the agreements are effective in achieving protection outcomes under their specific terms.

Steps taken or facilitated by the Federal Government on Non-Federal Lands

Steps taken or facilitated by the Federal Government that relate to the protection and conservation of critical habitat are outlined below.

4. Future reporting

The Government of Canada will be updating this report on a regular basis. Going forward, ECCC and provinces/territories will also report separately on steps being taken to protect critical habitat for priority places and priority species initiatives as part of the Pan-Canadian approach transforming Species Risk conservation Canada (PDF).

Annex A: Lists of species with critical habitat identified on non-federally administered lands by province/territory

A1: Species with critical habitat identified on non-federal lands in British Columbia

Bear’s-foot Sanicle
Bearded Owl-clover
Behr’s (Columbia) Hairstreak
Blue-grey Taildropper
Bog Bird’s-foot Trefoil
Branched Phacelia
Brook Spike-primrose
California Buttercup
Cliff Paintbrush
Coast Microseris
Coastal Giant Salamander
Coastal Scouler’s Catchfly
Contorted-pod Evening-primrose
Deltoid Balsamroot
Dense-flowered Lupine
Dense Spike-primrose
Dromedary Jumping Slug
Dun Skipper
Dwarf Woolly-heads, Southern Mountain population
Edward’s Beach Moth
Foothill Sedge
Fragant Popcornflower
Golden Paintbrush
Grand Coulee Owl-clover
Gray’s Desert-parsley
Great Basin Spadefoot
Half-moon Hairstreak
Haller’s Apple Moss
Lemmon’s Holly Fern
Lewis’s Woodpecker
Lindley’s False Silverpuffs
Little Brown Myotis
Macoun’s Meadowfoam
Marbled Murrelet
Mexican Mosquito-fern
Mormon Metalmark
Muhlenberg’s Centaury
Mountain Holly Fern
Northern Goshawk, laingi subspecies
Northern Leopard Frog (Rocky Mountain population)
Northern Myotis
Northern Saw-whet Owl, brooksi subspecies
Nugget Moss
Oregon Forestsnail
Oregon Spotted Frog
Pacific Water Shrew Pallid Bat
Poor Pocket Moss
Porsild’s Bryum
Prairie Lupine
Purple Sanicle
Rayless Goldfields
Rigid Apple Moss
Rocky Mountain Tailed Frog
Rosy Owl-clover
Rusty Cord-moss
Sage Thrasher
Sand-verbena Moth
Scarlett Ammannia
Seaside Bone Lichen
Short-rayed Alkali Aster
Showy Phlox
Slender Collomia
Slender Popcornflower
Small flowered Lipocarpha
Small-flowered Tonella
Smooth Goosefoot
Southern Maidenhair Fern
Spalding’s Campion
Spotted Owl, caurina subspecies
Stoloniferous Pussytoes
Streambank Lupine
Tall Bugbane
Tall Woolly-heads
Taylor’s Checkerspot
Tiger Salamander (Southern Mountain population)
Toothcup
Townsend’s Mole
Vesper Sparrow, affinis subspecies
Victoria’s Owl-clover
Water-plantain Buttercup
White Meconella
Williamson's Sapsucker
Woodland Caribou (Southern Mountain population)
Yellow-breasted Chat, auricollis subspecies (Southern Mountain population)

A2: Species with critical habitat identified on non-federal lands in Alberta

Dusky Dune Moth
Five-spotted Bogus Yucca Moth
Gold-edged Gem
Greater Sage-Grouse, urophasianus subspeciesa
Greater Short-horned Lizarda
Little Brown Myotis
Loggerhead Shrike, excubitorides subspecies
Non-pollinating Yucca Moth
Northern Myotis
Ord’s Kangaroo Rata
Piping Plover, circumcinctus subspeciesa
Porsild’s Bryuma
Red Knot, rufa subspecies
Slender Mouse-ear-cressa
Small flowered Sand-verbenaa
Smooth Goosefoot
Soapweeda
Tiny Cryptanthaa
Western Spiderworta
Woodland Caribou (Southern Mountain population)a
Yucca Moth

a Species listed provincially under Alberta’s Wildlife Regulations, prescribed as endangered species.

A3: Species with critical habitat identified on non-federal lands in Saskatchewan

Black-footed Ferretb
Burrowing Owlb
Chestnut-collared Longspur
Dusky Dune Moth
Eastern Yellow-bellied Racer
Gold-edged Gem
Greater Sage-Grouse, urophasianus subspeciesb
Greater Short-horned Lizard
Loggerhead Shrike, excubitorides subspecies
Mountain Plover
Piping Plover, circumcinctus subspeciesb
Red Knot, rufa subspecies
Slender Mouse-ear-cressb
Small-flowered Sand-verbenab
Smooth Goosefoot
Sprague’s Pipit
Swift Foxb
Tiny Cryptanthab
Western Spiderwortb

b Species listed provincially under the Saskatchewan Wild Species at Risk Regulations as threatened, endangered or extirpated wild species at risk.

A4: Species with critical habitat identified on non-federal lands in Manitoba

Dusky Dune Mothc
Eastern Whip-poor-willc
Flooded Jellyskin
Gattinger's Agalinisc
Gold-edged Gemc
Golden-winged Warblerc
Least Bitternc
Little Brown Myotisc
Northern Myotisc
Poweshiek Skipperlingc
Prairie Skinkc
Red Knot, rufa subspeciesc
Rough Agalinisc
Small White Lady's slipperc
Smooth Goosefootc
Western Prairie Fringed Orchidc
Western Silvery Asterc
Western Spiderwortc
White Flower Mothc

c Species listed provincially as endangered or threatened species under the ESEA regulations.

A5: Species with critical habitat identified on non-federal lands in Ontario

Acadian Flycatcherd
Allegheny Mountain Dusky Salamander (Carolinian population)d
American Badger, jacksoni subspeciesd
American Chestnutd
American Columbod
American Gingsengd
American Water-willowd
Bashful Bulrushd
Bent Spike-rush (Great Lakes Plains population)d
Blanding's Turtle (Great Lakes / St. Lawrence population)d
Blueheartsd
Blunt-lobed Woodsiad
Bogbean Buckmothd
Branched Bartoniad
Butler's Gartersnaked
Cherry Birchd
Colicrootd
Common Hoptree
Cucumber Treed
Deerberryd
Dense Blazing Stard
Drooping Trilliumd
Dwarf Hackberryd
Eastern Flowering Dogwoodd
Eastern Prairie Fringed Orchidd
Eastern Prickly Pear Cactusd
Eastern Whip-poor-willd
Engelmann’s Quillwortd
False Hop Sedged
False Rue-anemoned
Flooded Jellyskin
Forked Three-awned Grassd
Fowler's Toadd
Gattinger's Agalinisd
Golden-winged Warbler
Gray Foxd
Heart-leaved Plantaind
Hill’s Thistled
Hoary Mountain-mintd
Jefferson Salamanderd
Juniper Sedged
Kentucky Coffee-treed
Lakeside Daisy d
Large Whorled Pogoniad
Least Bitternd
Little Brown Myotisd
Loggerhead Shrike, migrans subspecies d
Massasauga, Carolinian populationd
Massasauga, Great Lakes / St. Lawrence populationd
Nodding Pogoniad
Northern Myotisd
Pale-bellied Frost Lichend
Pink Milkwortd
Piping Plover, circumcinctus subspeciesd
Prothonotary Warblerd
Purple Sanicled
Purple Twaybladed
Queensnaked
Rapids Clubtaild
Red Knot, rufa subspeciesd
Red Mulberryd
Round-leaved Greenbrier (Great Lakes Plains population)d
Scarlett Ammannia d
Slender Bush-cloverd
Small-flowered Lipocarpha d
Small White Lady’s-slipper d
Small Whorled Pogonia d
Spiny Softshelld
Spoon-leaved Mossd
Spotted Turtled
Spotted Wintergreend
Toothcupd
Tri-colored Batd
Virginia Goat’s-rued
Virginia Mallowd
Water-plantain Buttercupd
Western Chorus Frog (Great Lakes / St. Lawrence - Canadian Shield population)
Western Silvery Asterd
White Wood Asterd
Wild Hyacinthd
Willowleaf Asterd
Wood Poppyd

d Species provincially listed as endangered or threatened, and receiving some habitat protection under the Ontario ESA.

A6: Species with critical habitat identified on non-federal lands in Quebec

Allegheny Mountain Dusky Salamander (Great Lakes / St. Lawrence population)
American Gingsenge
American Water-willowe
Blunt-lobed Woodsia
False Hop Sedgee
Forked Three-awned Grass
Golden-winged Warblere
Green-scaled Willowe
Gulf of St- Lawrence Astere
Horned Grebe (Magdalen Islands population)e
Least Bitterne
Maritime Ringlete
Piping Plover, melodus subspeciese
Purple Twayblade
Red Knot, rufa subspeciese
Roseate Terne
Van Brunt's Jacob's ladder
Victorin's Gentiane
Western Chorus frog (Great lakes St-Lawrence population)e
Woodland Caribou (Atlantic-Gaspesie population)e

e Species provincially listed under the Quebec Act respecting Threatened or Vulnerable Species.

A7: Species with critical habitat identified on non-federal lands in New Brunswick

Cobblestone Tiger Beetle
Eastern Whip-poor-will
Furbish's Lousewortf
Gulf of St- Lawrence Asterf
Least Bittern
Little Brown Myotis
Maritime Ringletf
Northern Myotis
Piping Plover, melodus subspeciesf
Tri-colored Bat
Van Brunt’s Jacob’s ladder

f Species provincially listed in Schedule A of the New Brunswick Species at Risk Act.

A8: Species with critical habitat identified on non-federal lands in Nova Scotia

Blanding's Turtle (Nova Scotia population)g
Boreal Felt Lichen (Atlantic population)g
Eastern Mountains Avensg
Eastern Ribbonsnake (Atlantic population)g
Little Brown Myotisg
Northern Myotisg
Pink Coreopsisg
Piping Plover, melodus subspeciesg
Plymouth Gentiang
Roseate Terng
Thread-leaved Sundewg
Tri-colored Batg
Vole’s Ear’s licheng

g Species provincially listed as endangered or threatened wildlife species under the Nova Scotia Endangered Species Act.

A9: Species with critical habitat identified on non-federal lands in Prince Edward Island

Gulf of St- Lawrence Aster
Piping Plover, melodus subspecies

A10: Species with critical habitat identified on non-federal lands in Newfoundland and Labrador

American Marten, Newfoundland populationh
Barrens Willowh
Fernald’s Brayah
Little Brown Myotis
Long’s Brayah
Northern Myotis
Piping Plover, melodus subspeciesh
Porsild’s Bryumh
Vole’s Ear’s lichenh

h Species provincially listed as endangered or threatened under the Newfoundland Endangered Species Act.

A11: Species with critical habitat identified on non-federally administered lands in Nunavut

Ivory Gull
Red Knot, rufa subspecies

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