Species at Risk Act annual report for 2011: chapter 3

3 Protection measures for listed species

3.1 Legislative background

The protection that comes into effect following the addition of a species to Schedule 1 of SARA depends on the type of species (e.g., migratory bird, aquatic species), its listed status (endangered, threatened, special concern) listed, and its location.

Sections 32 and 33 of SARA make it an offence to:

  • kill, harm, harass, capture or take an individual of a species that is listed as extirpated, endangered or threatened;
  • possess, collect, buy, sell or trade an individual of a species that is listed as extirpated, endangered or threatened, or any of its parts or derivatives; or
  • damage or destroy the residence of one or more individuals of a species that is listed as endangered or threatened, or of a species listed as extirpated if a recovery strategy has recommended its reintroduction into the wild in Canada.

These prohibitions apply automatically to listed aquatic species and to listed migratory birds protected under the Migratory Birds Convention Act, 1994 wherever they are found in Canada, and to all other endangered, threatened or extirpated species when found on federal lands in a province or lands under the authority of the Minister of the Environment in a territory.4

Provinces and territories have the primary responsibility to protect other listed species on provincial, territorial and private land. If the province or territory does not act, the Governor in Council, on the recommendation of the Minister of the Environment, may order that the prohibitions in sections 32 and 33 apply for a given species on non-federal lands in a province or territory, or on lands under the authority of Environment Canada or the Parks Canada Agency in a territory. The Minister must make a recommendation if, after consultation with the provincial or territorial minister, and wildlife management board if required, the Minister finds that the species or its residence is not effectively protected by the laws of the province or territory.

3.2 Emergency orders

Under section 29 of SARA, if the Minister of the Environment, after consultation with every other competent minister, is of the opinion that there is an imminent threat to the survival of a wildlife species, the Minister must recommend to the Governor in Council that the species be added to the List of Wildlife Species at Risk as an endangered species on an emergency basis. No emergency listing was recommended by the Minister of the Environment in 2011.

Under section 80 of SARA, the Governor in Council (GiC) may, on the recommendation of the competent minister, make an emergency order to provide for the protection of a listed wildlife species or its habitat on federal lands or on non-federal lands.

In 2010, two applications for judicial review were filed in Federal Court on behalf of the Beaver Lake Cree Nation, Enoch Cree Nation, Chipewyan Prairie Dene First Nation, and Athabasca Chipewyan First Nation (First Nations) and the Alberta Wilderness Association, the Pembina Institute and the Sierra Club Prairie seeking to compel the Minister of the Environment to make a recommendation to the GiCthat an emergency order be issued pursuant to ss. 80(2) of SARA to protect boreal caribou in northeastern Alberta a species which is listed as “threatened” under Schedule 1 of the Species at Risk Act.

On February 2, 2011 the Minister of the Environment concluded that neither the survival nor recovery of the boreal caribou was imminently threatened. The matter was heard in June 2011 and the Federal Court ruled that the Minister's decision failed to take into account the First Nations Applicants' Treaty Rights and the honour of the Crown. The Court set aside the Minister's decision not to recommend an emergency order and the matter was remitted to the Minister for reconsideration. The Minister reconsidered whether or not the survival or recovery of the boreal caribou was imminently threatened on January 13, 2012 and concluded that it was not. The Applicants filed another Application for judicial review in February 2012 asking the court to declare that the Minister's reconsideration of whether or not the survival or recovery of the boreal caribou was imminently threatened is unlawful or unreasonable.5 This matter remains before the Court.

In November 2011, Ecojustice, on behalf of a coalition of conservation organizations, petitioned the Minister of the Environment to recommend an emergency order for the Greater Sage-grouse, pursuant to section 80(2) of SARA. This petition was followed by the filing of a Notice of Application for judicial review on February 23, 2012 seeking an order compelling the Minister to comply with s. 80(2) of SARA and recommend to the Governor in Council that an emergency order be made to provide for the protection of the Greater Sage-Grouse in Canada.6 This matter remains before the Court.

3.3 Permits

Sections 73 to 78 of SARA address agreements, permits, licences, orders and other instruments that authorize activities that otherwise would be offences under the Act. If all reasonable alternatives have been considered, all feasible measures have been taken to minimize the impact of the activity, and the survival or recovery of the species is not jeopardized, the competent minister may enter into an agreement or issue a permit under SARA for the following activities:

  • scientific research related to conserving a listed species, conducted by qualified persons;
  • activities that benefit a listed species or enhance its chances of survival in the wild; and
  • activities that incidentally affect a listed species.

Environment Canada, the Parks Canada Agency, and Fisheries and Oceans Canada issued a total of 185 SARA permits in 2011 for purposes of research, conservation, and monitoring of listed species.

In 2011, Fisheries and Oceans Canada issued 118 permits covering at least 19 listed aquatic species. These permits were issued to different groups, including fisheries technicians, consultants, researchers, and environmental scientists whose activities could incidentally affect listed species or their critical habitat. Peer-reviewed assessments determined that the level of harm from these activities would not jeopardize the survival or recovery of the listed species.

In 2011, Environment Canada issued 36 permits to allow for the monitoring, inventory or management of over 140 species, including reptiles, amphibians, birds, vascular plants, arthropods molluscs and mammals. Of the 36 permits issued, 23 were for scientific research related to the conservation of a species; 4 were for activities benefiting a species or required to enhance its chance of survival in the wild; 5 were for activities that may incidentally affect a species; and 4 were for more than one purpose.

In 2011, Environment Canada deployed a new e-permitting system, which allows permit applications to be completed and submitted online.

The Parks Canada Agency also maintains an online research permitting system to enhance services to researchers, and to ensure that the Agency is informed of research being conducted in the protected heritage places network. The system incorporates a mandatory peer-review mechanism that ensures that every permitted research activity is SARA-compliant. In 2011, the Parks Canada Agency issued 31 SARA-compliant permits. Of these, 25 permits covering at least 23 listed species were issued to academic and government researchers as well as Parks Canada scientists, for conservation research affecting species at risk, including inventory, population monitoring, habitat use and restoration, and conservation genetics. The remaining 6 permits were for activities that may incidentally affect a listed species.

Rationales for all permits issued under the Act by Environment Canada, the Parks Canada Agency, and Fisheries and Oceans Canada are posted on the Species at Risk Public Registry.

3.4 Conservation agreements

A competent minister may, after consultation with the other competent minister and with the Canadian Endangered Species Conservation Council or any of its members, enter into a conservation agreement with any government in Canada, organization or person, to benefit a species at risk or enhance its survival in the wild.

The agreement must provide for the taking of conservation measures and any other measures consistent with the purposes of SARA, and may include measures with respect to:

  • monitoring the status of the species;
  • developing and implementing educational and public awareness programs;
  • developing and implementing recovery strategies, action plans and management plans;
  • protecting the species' habitat, including its critical habitat; or
  • undertaking research projects in support of recovery efforts for the species.

Conservation agreements can also be entered into to provide for the conservation of a wildlife species that is not a species at risk.

The competent departments continued work to develop the first conservation agreements under SARA. These will be with First Nations in British Columbia and Ontario.

3.5 Compliance promotion

SARA recognizes that Canada's natural heritage is an integral part of our national identity and history. All Canadians have a role to play in the conservation of wildlife species and their habitats, and public involvement through education and awareness is essential to maintaining an effective compliance and enforcement program.

Officials from Environment Canada, Fisheries and Oceans Canada and the Parks Canada Agency continue working together to promote compliance with the Act, ensuring that Canadians are informed about SARA and their responsibilities under the Act. Offences committed under SARA can lead to legal proceedings.

Environment Canada ensures compliance with SARA for migratory birds throughout Canada and for terrestrial species that are found on federal lands (other than lands under the authority of Parks Canada).

Information is shared within the Department and with federal and provincial partners. Environment Canada also delivers information to educate communities and the public about activities that affect species at risk and their habitat. In 2011, Environment Canada finalized the SARA Compliance Promotion Framework for Core Departments.

Environment Canada also provided information sessions for Aboriginal and other stakeholder communities, as well as signage, area-user brochures, and volunteer guardian programs.

In 2011, fishery officers from Fisheries and Oceans Canada continued working with partners to promote SARA compliance, through education and outreach activities with affected communities and Aboriginal groups. Fishery officers dedicated more than 825 hours to educating Canadians, through school visits, trade shows, workshops and community meetings, on the threats to aquatic species at risk and how they can help protect these species. Some highlights of these activities include:

  • educating boat operators, including kayakers and fishing lodge staff, about the guidelines for viewing marine mammals from a safe and responsible distance;
  • building relationships with all-terrain vehicle (ATV) communities and organizations at meetings and trade shows, to raise their awareness about the impacts of ATVs in streams that support SARA-listed species and to discourage the use of advertising that depicts ATVs crossing streams;
  • working with First Nations fishers to reduce the interception rate of endangered Nechako White Sturgeon in salmon gillnets and promote best practices for the safe release of sturgeon from the nets;
  • visiting classrooms in Haida Gwaii to raise awareness of how illegal harvest impacts the overall recovery of Northern Abalone populations in their communities;
  • educating local fishers and stakeholders about the impacts of entanglement on Leatherback Sea Turtles; and
  • encouraging members of the fishing industry to report Leatherback Sea Turtle sightings, entanglements and strandings by creating an email network through which they can both receive information from the department's regional offices as well as send in reports of incidents in a timely manner, especially during turtle migration periods.

The Parks Canada Agency promotes compliance with SARA through public engagement in efforts to mitigate the factors that adversely affect the protection and recovery of species at risk. In 2011, the Agency continued to implement the Parks Canada Service Prevention Guidelines, which support the implementation of activities promoting awareness and understanding of species at risk and their habitat.

3.6 Enforcement

Environment Canada, the Parks Canada Agency and Fisheries and Oceans Canada jointly enforce SARA. These federal entities work in partnership with Aboriginal, provincial, territorial and international authorities to preserve and protect SARA-listed wildlife species at risk and their critical habitats. More information regarding the applicability of SARA prohibitions (see section 3.1) can be found on the Species at Risk Public Registry website.

3.6.1 Enforcement capacity

Environment Canada enforces four statutes that protect wildlife:

This suite of legislation is aimed at protecting and conserving wildlife species and their habitats. To ensure the effective enforcement of these acts, wildlife officers work in close cooperation with national and international partners.

In 2011, Environment Canada had a staff of 87 enforcement officers assigned to enforce these Acts.

Fisheries and Oceans Canada's enforcement actions for species at risk are carried out by approximately 600 front-line fishery officers who have been trained and designated as enforcement officers under SARA and who incorporate SARA enforcement activities into their duties under the Fisheries Act and other federal statutes and regulations.

Parks Canada's Law Enforcement Program has been in operation since May 2009. Park wardens enforce legislation related to Parks Canada's mandate, including SARA, on all lands and waters it administers. These wardens also support law enforcement in other Parks Canada protected heritage areas as required. In 2011, the contingent of park wardens dedicated to law enforcement activities included 82 positions located in 33 protected heritage areas.

3.6.2 Enforcement activities

Enforcement activities under SARA include patrolling protected areas, investigating alleged violations, and assuring compliance through court action. Penalties for contraventions of the Act include liability for costs, fines, imprisonment, alternative measures agreements, and forfeiture of proceeds from illegal activities.

Each year, Environment Canada prioritizes its enforcement activities. In 2011, as in the four previous years, SARA enforcement activities focused on three national priorities:

  • Legal obligations: a legal obligation to investigate exists under section 93 of SARA. It comes into play when receiving a public request that an investigation be carried out concerning an alleged offence involving SARA-listed species, their critical habitat or residence. This priority also includes inspections related to SARA emergency orders, which play an essential role in addressing immediate conservation concerns.
  • Commercial activities: these involve commercial/industrial activities that may entail the incidental take of SARA-listed species.
  • The protection of critical habitat on federal lands: critical habitat is the habitat deemed necessary for the survival and recovery of species listed under SARA.

In 2011, Fisheries and Oceans Canada fishery officers dedicated over 16 000 hours to activities related to species at risk, such as operational planning, patrols, inspections, investigations, court cases, public relations and other duties related to enforcing the prohibitions of SARA.

3.6.2.1 Enforcement tracking and intelligence

Environment Canada's Wildlife Intelligence Program has a regional intelligence officer for each region and a national intelligence unit. Regional intelligence officers are mainly involved in the collection of operational and tactical intelligence that supports the investigation and inspection programs. The national unit focuses on strategic intelligence and analysis to determine national and international trends in illegal activities related to wildlife species.

Fisheries and Oceans Canada tracks enforcement activities through the Fisheries Enforcement Activity Tracking System. The Department recorded a total of 55 SARA violations in 2011, resulting in fines, seizures, charges and warnings.

Fisheries and Oceans Canada is building its capacity for strategic intelligence analysis, which will identify individuals, groups and companies that should be monitored for compliance. This involves state-of-the-art intelligence software that is a critical component of intelligence-led policing, as it will increase the efficacy with which the Department can identify, monitor and charge those who intentionally violate the SARA prohibitions and who therefore place species at an increased risk of extinction.

The Parks Canada Agency tracks enforcement activities through the Occurrence Tracking System. In 2011, park wardens recorded a total of five law enforcement occurrences related to the protection of species at risk and enforcement of the Act in protected heritage areas. One of these occurrences involved all-terrain vehicle tracks observed on a beach in a Piping Plover closure, but no subsequent leads or enforcement actions were taken beyond monitoring the situation. There were no charges or prosecutions under the prohibitions of SARA during this period.

3.6.2.2 Inspections

Environment Canada's inspection efforts target areas where detecting violations of the law will have the most positive impacts on conservation. These efforts fall under the three national priorities described in section 3.6.2 above. Human activities can have an impact on SARA-listed species, and can result in violations related to habitat destruction, illegal capture, poaching, removal from the wild, or disturbance of residences. The list of general prohibitions under sections 32 to 36 can be found on the SARA Public Registry.

Environment Canada enforcement officers conducted 30 inspections in 2011, seven of which resulted in the detection of a violation. An inspection can include several activities or audits and can take several days, depending on the type of audit.

As part of their enforcement work, fishery officers conduct regular and targeted inspections to ensure that Canadians are complying with legislation that protects species at risk (e.g., SARA, Fisheries Act). Partnerships with other agencies, such as the Canadian Border Services Agency and Canadian Food Inspection Agency, are an important resource to fishery officers in carrying out inspections of cargo, containers and fish shipments that could be used to smuggle species at risk.

In 2011, fishery officers in Fisheries and Oceans Canada's Pacific Region carried out several inspections that led to investigations regarding poaching, buying and selling of Northern Abalone. Officers in the Department's Quebec, Gulf and Maritime regions carried out regular inspections of groundfish catches for any incidental catch of Northern, Atlantic or Spotted Wolffish. All logbooks, whether for groundfish, large pelagic, tuna, etc., are reviewed for any species at risk.

3.6.2.3 Investigations

In 2011, Environment Canada conducted 17 investigations.

The following example of an investigation that yielded results in 2011 illustrates the type of situation in which a single case can result in charges under multiple acts.

Illegal import of rattlesnakes and scorpions led to convictions under WAPPRIITA and SARA

In 2009, following an investigation by Environment Canada, an individual was charged at the Kingsgate border crossing near Cranbrook, British Columbia for illegally importing Western Rattlesnakes (which are SARA listed as threatened) and Emperor Scorpions into Canada. The investigation revealed that the snakes had been smuggled into Canada after being unlawfully harvested from the wild in the United States, and the scorpions had been purchased from a United States pet store.

In October 2011, the individual was convicted and his violations included two counts under the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (WAPPRIITA) relating to the scorpion import and one count under the Species at Risk Act (SARA) relating to the possession of the rattlesnakes.

Following the conviction, the individual was sentenced to pay $10,000 in penalties of which $1,000 was a fine and $9,000 a contribution to the Environmental Damages Fund. He was also ordered to pay $1400 towards the care of the seized animals.


Western Rattlesnake. © Karl W. Larsen

Western Rattlesnake. © Karl W. Larsen

Environment Canada publishes the outcomes of its main investigations on its website. Media releases and enforcement notifications are available online.

Investigations are an important part of fishery officers' enforcement work in cases where non-compliance has been discovered. Officers use a number of tools, such as verbal and written warnings, tickets, arrests, seizures, and court-directed fines, to ensure offenders become compliant with laws that protect species at risk.

In 2011, fishery officers in the Eastern Arctic area, in cooperation with the Department of National Defence, boarded numerous commercial fishing vessels throughout the Davis Strait. Officers were inspecting the vessels for Wolffish bycatch and compliance with SARA regulations. These at-sea boardings were a new occurrence for this fishing area.

4 Under SARA, “federal land” includes, but is not limited to, Canada's territorial sea and internal waters, national parks, military training areas, national wildlife areas, some migratory bird sanctuaries, and First Nations' reserve lands.

5 This second application is also seeking an order declaring that the Minister failed to meet his statutory duty to include a final recovery strategy for Boreal Caribou on the Public Registry within the time period mandated by ss. 42(2) and 43 of SARA

6 The Notice of Application is also seeking amongst others, an order requiring the Minister to amend the Recovery Strategy to identify further critical habitat for Sage Grouse as set out in the June 2011 Draft Amendment to the Recovery Strategy for the Greater Sage-Grouse in Canada.

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