Species at Risk Act annual report 2012: 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) 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 Minister of the Environment is of the opinion that the provincial or territorial legislation does not effectively protect the individuals of a species, their residences or their critical habitat, the Minister is required, after consultation with the appropriate provincial or territorial minister or if applicable, the wildlife management board, to recommend to the Governor in Council that an order be made to apply the general prohibitions in sections 32 and 33 of SARA.
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 on an emergency basis that the species be added to the List of Wildlife Species at Risk as an endangered species. Upon receipt of such a recommendation, the Governor in Council determines whether or not the species will be added to the List of Wildlife Species at Risk as an endangered species.
The Minister of the Environment received emergency assessments of three bat species (Little Brown Myotis, Tri-colored Bat and Northern Myotis) from COSEWIC in February 2012, which will be reviewed along with any other relevant information. To date, no species have been added to the List of Wildlife Species at Risk on an emergency basis.
Under section 80 of SARA, the Governor in Council 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 and on non-federal lands. Applications for judicial review seeking an order to compel the Minister to make a recommendation to the Governor in Council that there is an imminent threat to the survival or recovery of particular species have been brought before the Federal Court. As of 2012, no emergency orders had been issued.
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; or
- activities that incidentally affect a listed species.
As part of the Jobs, Growth and Long-Term Prosperity Act, which was passed by Parliament in 2012, amendments were made to the SARA provisions that authorize otherwise-prohibited activities. Previously, these authorizations were limited to three years for permits, or five years for agreements, and the conditions of granting an authorization were not directly enforceable.
SARA was amended to:
- allow for long-term authorizations, with enforceable conditions of permits for activities affecting a listed species at risk, and
- specify that regulations made pursuant to ss.73(10) may include provisions to establish timelines for the issuance, renewal or refusal of SARA permits.
With longer durations, authorizations can be issued for a time period better suited to large projects and can be aligned with provincial or territorial permits, where appropriate. The amendments that allow timelines to be set in regulation will ensure a consistent and predictable approach with respect to timelines for issuing and renewing permits.
SARA authorization requests will continue to be evaluated to determine what risk the proposed activity poses to protected species and if the activity can be authorized without jeopardizing the survival or recovery of species at risk.
Environment Canada, the Parks Canada Agency, and Fisheries and Oceans Canada issued a total of 181 SARA permits in 2012 for purposes of research, conservation and monitoring of listed species.
Fisheries and Oceans Canada issued 130 permits covering at least 27 listed aquatic species in 2012. These permits were only issued after the Department had determined that the survival of the species would not be jeopardized. Fisheries technicians, consultants, researchers and environmental scientists are among those who received permits in 2012.
In 2012, Environment Canada issued 33 permits to allow for the monitoring, inventory or management of 77 species, including reptiles, amphibians, birds, vascular plants, arthropods, molluscs, mosses, mammals and lichens. Of the 33 permits issued, 12 were for scientific research related to the conservation of a species, 3 were for activities benefiting a species or required to enhance its chance of survival in the wild, 10 were for activities that may incidentally affect a species, and 8 were for more than one of these three purposes.
In 2012, the Parks Canada Agency issued 18 SARA permits. Of these, 15 permits covering at least 12 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 3 permits were for activities that may incidentally affect a listed species. The Parks Canada Agency 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 SARA requirements are considered for every permitted research activity.
Explanations 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, Ontario and Prince Edward Island.
Fisheries and Oceans Canada also continued to advance the development of a draft conservation agreement for the endangered mollusc Hotwater Physa.
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 is tasked with ensuring compliance with SARA for migratory birds throughout Canada and for terrestrial species that are found on federal lands within Canada (other than lands under the authority of Parks Canada).
Information to support compliance promotion activities was shared within the Department and with federal and provincial partners. Environment Canada also delivered information in the form of fact sheets, Qs and As, Web content, information sessions and others to educate communities and the public about activities that affect species at risk and their habitat.
Environment Canada also provided information sessions for Aboriginal and stakeholder communities, as well as signage, area-user brochures and volunteer guardian programs.
Fisheries and Oceans Canada continued working with partners to educate Canadians on the threats to aquatic species at risk, how they can help protect these species and their responsibility under SARA. Departmental staff visited schools, organized workshops, and attended trade shows, festivals and community meetings. Some highlights include:
- promoting and teaching Canadians about the “Be Whale Wise” initiative, a guideline for viewing marine mammals from a safe and responsible distance;
- educating boat operators, including kayakers and fishing lodge staff across the country, about the importance of recording and reporting species at risk catches in their logbooks and the quick and safe release of these species during coastal and in-port patrols; and
- holding information sessions with Aboriginal groups and commercial fishers to increase awareness of SARA, its processes, current listed species and species being considered for listing under SARA.
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 2012, the Agency continued to implement the Parks Canada Prevention Guidelines, which support the implementation of activities promoting awareness and understanding of species at risk and their habitat.
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 sections 3.1 and 5.1) can be found on the Species at Risk Public Registry website.
3.6.1 Enforcement Capacity
Environment Canada enforces four statutes that protect wildlife:
- the Species at Risk Act;
- the Migratory Birds Convention Act, 1994;
- the Canada Wildlife Act; and
- the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
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 2012, 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 511 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 that the Agency administers. In 2012, the contingent of park wardens dedicated to law enforcement activities included 87 positions located in the Agency's 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 fines, imprisonment, alternative measures agreements, and forfeiture of proceeds from illegal activities.
Each year, Environment Canada prioritizes its enforcement activities. In 2012, SARA enforcement activities continued to focus 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.
- 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 2012, Fisheries and Oceans Canada fishery officers dedicated over 19 000 hours to patrols, inspections, investigations, court cases, public relations and other duties related to enforcing the prohibitions of SARA.
18.104.22.168 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.
In 2012, Fisheries and Oceans Canada reported 45 SARA violations that resulted in fines, seizures, charges and warnings for the offenders. These offences were entered into the fisheries Enforcement Activity Tracking System, a state-of-the-art tracking system that continues to help the Department increase its efficiency in tracking, monitoring, identifying and charging individuals, groups or companies who violate the SARA prohibitions.
The Parks Canada Agency tracks enforcement activities through the Occurrence Tracking System. In 2012, park wardens recorded a total of eight law enforcement occurrences related to the protection of species at risk and enforcement of the Act in protected heritage areas. There were no charges or prosecutions under the prohibitions of SARA during this period.
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. Environment Canada enforcement officers conducted 33 inspections in 2012.
Fisheries and Oceans Canada conducts regular and targeted inspections to ensure that individuals, groups and companies are complying with legislation that protects species at risk (e.g., SARA, Fisheries Act). In 2012, Fisheries and Oceans Canada carried out 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. Fish processing plants, wholesale enterprises, retail businesses and airports were also inspected for illegal possession or harvesting of Northern Abalone and shark fin.
A number of fixed-wing patrols over the 2012 field season included the Beluga Hunt areas of Cumberland Sound to assess for hunting activity, struck and lost animals, and entrapment (high tide/low tide).
Inspections of cargos, containers and fish shipments that could be used to smuggle species at risk are often carried out in partnership with other agencies, such as the Canada Border Services Agency and the Canadian Food Inspection Agency. Several inspections have led to investigations regarding the illegal possession of Northern Abalone meat and shells with intent to sell or illegal harvesting activities.
Investigations are an important part of 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 2012, Environment Canada conducted six investigations involving critical habitats and regulated species under SARA, such as Butternut, Wild American Ginseng and Sea Otter. Some of these investigations are ongoing. Others have resulted in no enforcement action being taken as there was insufficient evidence to do so.
Environment Canada publishes the outcomes of its main investigations on its website. Media releases and enforcement notifications are available online.
In 2012, fishery officers performed 74 SARA-related investigations that led to verbal or written warnings, tickets or arrests, seizures, or court-directed fines. One investigation in Vancouver led to the conviction of an individual for illegal possession of 280 kilograms of frozen Northern Abalone. The individual was ordered to pay a $40,000 fine, $35,000 of which was directed to Fisheries and Oceans Canada to fund research on illegal trafficking and distribution of Northern Abalone. Illegal harvest and trade remains one of the greatest threats to Northern Abalone.
Conviction for Harassing an Endangered Species
On September 27, 2012, a recreational boater was convicted in provincial court in Campbell River, British Columbia, on two counts of harassing and disturbing Killer Whales, under both the Fisheries Act's Marine Mammal Regulations, which specifically prohibit any disturbance of marine mammals, and the Species at Risk Act, which makes it illegal to harass a member of a wildlife species that is listed as extirpated, endangered or threatened. This is the first time that an individual has been found guilty of harassing orcas under the Species at Risk Act.
Sentencing has yet to take place, but violations can result in significant fines and penalties, from a maximum of $250,000 under Species at Risk Act legislation to $100,000 under the Marine Mammal Regulations.
The charges arose from an incident on August 3, 2010, when fishery officers on patrol in the waters around Quadra Island near Campbell River observed a recreational power boat repeatedly accelerating towards two Killer Whales as they surfaced and then dove. The boat eventually powered up behind the orcas, at a distance of 15 to 25 metres away from the animals. This is contrary to the long-established whale-watching guidelines in Canada, which state a minimum distance of 100 metres should be maintained between vessels and orcas.
British Columbia's two resident killer whale populations are listed as endangered (southern residents) and threatened (northern residents) under the Species at Risk Act. The Resident Killer Whale Recovery Strategy identifies physical and acoustic vessel disturbance as a potential threat to their recovery.
Killer Whales © Graeme Ellis
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.
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