Order Extending the Time for the Assessment of the Status of Wildlife Species

Vol. 137, No. 18 -- May 3, 2003

Statutory Authority

Species at Risk Act

Sponsoring Department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

Description

The Species at Risk Act (SARA) [the Act] assists in meeting Canada's commitments under the United Nations Convention on Biological Diversity, ratified by Canada in 1992, and complements existing wildlife protection legislation. The purpose of theAct is to provide legal protection to prevent wildlife species from being extirpated or becoming extinct; to provide for the recovery of wildlife species that are currently extirpated, endangered or threatened; and to manage species of special concern to prevent them from becoming endangered or threatened. Specifically, SARA protects wildlife species listed at risk at the national level, as well as their critical habitats. Over time, SARA will become a cornerstone of species protection and recovery in Canada.

SARA received Royal Assent on December 12, 2002. It is expected to be brought into force in early June 2003. The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) has provided independent scientific advice to governments on the status of wildlife species in Canada for the past 25 years. SARA establishes COSEWIC as a legal entity, reporting to the Canadian Endangered Species Conservation Council (CESCC). The CESCC consists of the federal, provincial and territorial ministers responsible for the conservation and management of wildlife species. The Council's role is to provide general direction on the activities of COSEWIC, the preparation of recovery strategies and the preparation and implementation of action plans, and the coordination of the activities of the various relevant governments.

COSEWIC's main function is to assess the level of risk to wildlife species based on the best available scientific information, aboriginal traditional knowledge and community knowledge regarding the status of species suspected of being at risk. This assessment is based on biological factors compiled in detailed status reports (SARA, subsection 21(1)) and the application of assessment criteria, followed by classification into categories based on level of risk as extirpated, endangered, threatened or special concern.

In 1999, COSEWIC adopted new quantitative assessment criteria based on criteria developed by the World Conservation Union (IUCN). Application of these criteria results in more objective, more consistent and more easily explained assessments.

After the new criteria were adopted, the Government asked COSEWIC to reassess all previously designated species using these criteria. This reassessment workis ongoing and has not yet been completed. Schedule 1, the List of Wildlife Species at Risk, sets out the COSEWIC list of species at risk that were assessed as of the end of 2001 (either as new listings or as reassessments of previous listings) using these new criteria. Schedule 2 contains 39 species that had been designated prior to the adoption of the new criteria as endangered or threatened, and that as of the end of 2001 had not been reassessed by COSEWIC. Schedule 3 lists the species previously designated in the Special Concern category that have not yet been reassessed using the new criteria.

COSEWIC has already reassessed 13 of the 39 species on Schedule 2 of SARA. For the remaining 26 species (11 endangered and 15 threatened), the information contained in status reports is more than ten years old. These 26 species include 14 mammals (of which 9 are marine), 7 fish, 2 birds, 2 reptiles and 1 plant. The 9 marine mammals include 4 populations of the Beluga Whale (St. Lawrence River, Ungava Bay, Southeast Baffin Island-Cumberland Sound and Eastern Hudson Bay populations), the Right Whale, the Bowhead Whale (Eastern Arctic and Western Arctic populations), the Humpback Whale (North Pacific population), and the Harbour Porpoise (Northwest Atlantic population). The five land mammals include the Peary Caribou (Banks Island, High Arctic and Low Arctic populations), the Wolverine (Eastern population) and the Townsend's Mole. The fish are the Blackfin Cisco, Shortjaw Cisco, Shortnose Cisco, Black Redhorse, Copper Redhorse, Deepwater Sculpin (Great Lakes population), and Lake Whitefish (Lake Simcoe population). The two birds awaiting reassessment are the Northern Bobwhite and the Prairie Loggerhead Shrike, and the two reptiles are the Lake Erie Water Snake and the Blanding's Turtle (Nova Scotia population). The only plant is a tree, the American Chestnut.

COSEWIC is in the process of updating the status reports on all of these species with the most current and best available scientific information and aboriginal traditional knowledge (ATK), so that it can make accurate reassessments. For example, the inclusion of ATK is vital to the assessment of the Peary Caribou, and requires time for the necessary consultations to occur. COSEWIC expects to complete these reassessments by 2006.

Recognizing the urgency of determining whether species continue to be a risk, SARA sets tight timelines, ensuring that species at risk are considered for legal protection as soon as possible. As a result, COSEWIC must report its reassessments of species on the existing Schedule 2 to the Canadian Endangered Species Conservation Council and the public. Unless this period has been extended, reassessments of Schedule 2 species must be completed within 30 days of section 130 of SARA coming into force. Where Schedule 2 species are not assessed within the 30 days, these species will be deemed classified by COSEWIC the way they are listed in Schedule 2. This classification will then be reviewed by the Governor in Council on the recommendation of the Minister of the Environment, and the Governor in Council will decide whether to accept the assessment and add the species to the List, to not add the species to the List, or to refer the matter back to COSEWIC for further information or consideration.

Under subsection 130(5) of SARA, the Minister, after consultation with other competent ministers, may by order, extend the time provided for the assessment of any species set out in Schedule 2. The Minister must include a statement in the public registry setting out the reasons for the extension.

Given that COSEWIC does not currently have up-to-date scientific information and aboriginal traditional knowledge, where relevant, to complete the reassessments of 26 of the species listed in Schedule 2, an extension of 3 years is requested for COSEWIC's reassessments to be completed.

Alternatives

No extension order

The only alternative to the extension order under SARA would be to allow these 26 species to be deemed to have been classified by COSEWIC as indicated in Schedule 2.

The preparation of the updated status reports on which the COSEWIC assessment is based, requires finding qualified people who can write the status reports, and then allowing them the time to search for and gather published information on the species and to write the reports. Given COSEWIC's capacity, and the time needed for the preparation and subsequent reviews of the updated status reports, it is not possible for COSEWIC to reassess all of the Schedule 2 species within 30 days of section 130 coming into force. Without an extension order, these species would become deemed to have been classified as set out in Schedule 2 and thus become eligible for addition to Schedule 1 (the legal list). The Governor in Council would then have 9 months, after receiving COSEWIC's deemed assessment, to determine whether to accept this assessment for each species and add the species to the legal list, to not add the species to the list, or to refer the species back to COSEWIC for further information or consideration.

To proceed without an extension order would entail several serious disadvantages:

(1) Given that the 26 species were last assessed at least ten years ago, their status designations may no longer be accurate, as circumstances may have changed and new information is available in most cases. Any species with a risk status based on outdated information would likely be the object of a recommendation from the Minister of Environment to the Governor in Council that the deemed assessments be referred back to COSEWIC for further information or consideration. If the Governor in Council were to accept that recommendation, no time would be gained in obtaining legal protection for the species under SARA.

(2) Status reports written prior to SARA did not require the inclusion of aboriginal traditional knowledge, even in the case of species of particular interest to aboriginal people and the Wildlife Management Boards.

(3) Automatic prohibitions against killing, harming, possession and trade of listed species and against the damaging and destruction of the residences of their individuals follow upon the Schedule 1 listing of a species, as do the mandatory requirements for the development of recovery strategies and action plans. Consequently, listing a species as endangered or threatened on Schedule 1 could have serious social and economic consequences, and must therefore be founded on rigorous science and a comprehensive understanding of the circumstances of the species.

(4) There may also be negative environmental consequences of erroneous listing. If species are listed in a higher-than-actual risk category, resources to conserve and recover them may be diverted from those species that are truly in need.

Because of the above-mentioned considerations, this alternative is neither cost effective nor helpful in expediting the legal protection of species under SARA.

Benefits and Costs

There will be no cost to anyone as a result of the extension order, which simply maintains the status quo. Avoidance of listings that are founded on unverified science provides a benefit to society and industry. Inapt listings can have important socio-economic impacts and can also result in the dedication of resources to recovery where none may be needed. Another potential benefit would be increased confidence on the part of the public in SARA in comparison to attitudes that might be engendered by a precipitous or inapt listing.

The costs of the extension order to species and the environment are minimal. For some species, the extension will mean a longer wait for consideration for formal legal listing, and hence a delay in their legal protection and recovery under SARA. However, many of these species are already afforded some protection by federal and/or provincial/territorial legislation. For example, sixteen of the species that need to be reassessed are aquatic species. Of these, nine are marine mammals covered under the Cetacean Protection Regulations of the Fisheries Act, which prohibits hunting (including harming, killing and harassing) the mammals without a license, and no licenses have been issued. The Fisheries Act also regulates the seven fish species and protects their habitat. In addition, some recovery actions are (and have been) taking place for many of these species. Consequently, the delay, which will be only minor in most cases, will have no significant environmental costs.

In reality, the delay is not anticipated to be a full three years for all of these species. Of the 26 species that still need to be reassessed, six species are scheduled for reassessment at the spring 2003 meeting of COSEWIC, another five species in the fall of 2003, most of the remaining species in the spring of 2004, and only one or two species in 2005 and perhaps 2006. The proposed three-year extension would not slow down COSEWIC reassessments, but would simply accommodate COSEWIC's current schedule for completing the work, while making an allowance for unanticipated delays, thereby ensuring that this one extension will cover all probable outcomes.

Immediately after its reassessment by COSEWIC, each species will be considered for addition to the legal list if its status remains in a risk category.

Because all reassessments would be based on the best up-to-date information, the resultant status designations would be more credible, would be better accepted by all parties, and would therefore promote both compliance with, and the popular acceptance of, SARA. This increased confidence ultimately will help ensure the protection of all species at risk.

Consultation

In the nine years during which SARA was being developed, schedules containing lists of species have been appended to the proposed Act. Numerous consultations occurred concerning the provisions needed in the Act to secure an environment in which defensible science can occur. The Act was also developed to maintain a careful balance between all aspects and consequences of its provisions. Subsection 130(5) of the Act is one such provision, and is the result of these consultations.

Past consultations on various aspects of the Act have included discussions with all relevant federal departments (Fisheries and Oceans, Canadian Heritage, Parks Canada Agency, Agriculture and Agri-food Canada, National Defence, among others) as well as with provincial and territorial governments, stakeholders and the public. Aboriginal representatives, through the Aboriginal Working Group on Species at Risk and other mechanisms, have also had extensive input into the contents of the Act.

The Parks Canada Agency agrees that the proposed extension will permit appropriate consideration of up-to-date information during the assessment of the status of SARA's Schedule 2 species. The Agency notes that the individuals of species assessed as at risk by COSEWIC (including those listed on SARA's Schedule 2) that occur in national parks and national historic sites are protected under the Canada National Parks Act and its regulations. Furthermore, potential impacts on their survival are carefully considered through environmental assessments required either under the Canadian Environmental Assessment Act (CEAA) or by policy, and appropriate action is taken to avoid or mitigate these impacts. Consequently, the proposed extension will not result in lowered protection for individuals occurring in Canadian protected areas managed by the Agency.

Among the most important discussions that have taken place are those that occurred with COSEWIC, and resulted in COSEWIC making recommendations regarding the contents of the Act with respect to legal listing and the Committee's role in status assessment. The chair of COSEWIC and the co-chairs of the specialist groups responsible for the species that remain to be reassessed provided advice regarding the time needed to complete the reassessments. They are aware of, and support, the proposed extension.

The COSEWIC listing process is an open and transparent one. Lists of candidate species, as well as species for which status reports are being prepared are posted on the COSEWIC Website. Draft status reports are reviewed by independent experts and by the range jurisdictions where the species occur. All COSEWIC members, including all range jurisdictions, review status reports on all species and vote on the status assessments. A press release, containing the list of species assessed, the status assigned to each, and the reasons for the designation, is issued after every COSEWIC meeting and is posted on the COSEWIC Website.

In addition, the proposed extension order was brought to the attention of stakeholders at a recent national meeting, to which representatives of landowners and resource industries as well as four of the major environmental non-government environmental organizations were invited.

Compliance and Enforcement

There are no compliance issues in this instance, as this order does not result in obliging any parties to undertake or abstain from any activities. COSEWIC will continue to conduct the reassessments, as scheduled.

Contacts

Theresa Aniskowicz, Scientific Authority, Species Assessment, Canadian Wildlife Service, Environment Canada, Ottawa, Ontario K1A 0H3, (819) 953-6402 (Telephone), (819) 994-3684 (Facsimile), theresa.aniskowicz@ec.gc.ca (Electronic mail), or Jason Travers, Regulatory Analyst, Canadian Wildlife Service, Environment Canada, Ottawa, Ontario K1A 0H3, (819) 953-7593 (Telephone), (819) 956-5993 (Facsimile), jason.travers@ec.gc.ca (Electronic mail).

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 130(5) of the Species at Risk Act (see footnote a) , proposes to make the annexed Order Extending the Time for the Assessment of the Status of Wildlife Species.

Interested persons may make representations concerning the proposed Order within 15 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Director General, Canadian Wildlife Service, Environment Canada, Ottawa, Ontario, K1A 0H3.

Ottawa, May 1, 2003

EILEEN BOYD
Assistant Clerk of the Privy Council

ORDER EXTENDING THE TIME FOR THE ASSESSMENT
OF THE STATUS OF WILDLIFE SPECIES

1. The time provided for the assessment of the status of the wildlife species set out in the schedule is extended for 3 years from the day on which section 14 of the Species at Risk Act comes into force.

2. This Order comes into force on the day on which it is registered.

SCHEDULE
(section 1)

PART 1

ENDANGERED SPECIES

MAMMALS

Caribou, Peary (Rangifer tarandus pearyi) Banks Island population

Caribou de Peary population de l'île Banks

Caribou, Peary (Rangifer tarandus pearyi) High Arctic population

Caribou de Peary population du haut Arctique

Whale, Beluga (Delphinapterus leucas) St. Lawrence River population

Béluga population du fleuve St-Laurent

Whale, Beluga (Delphinapterus leucas) Ungava Bay population

Béluga population de la baie d'Ungava

Whale, Beluga (Delphinapterus leucas) Southeast Baffin Island -- Cumberland Sound population

Béluga population du sud-est de l'île de Baffin et de la baie Cumberland

Whale, Bowhead (Balaena mysticetus) Eastern Arctic population

Baleine boréale population de l'Arctique de l'Est

Whale, Bowhead (Balaena mysticetus) Western Arctic population

Baleine boréale population de l'Arctique de l'Ouest

Whale, Right (Eubalaena glacialis)

Baleine noire

Wolverine (Gulo gulo) Eastern population

Carcajou population de l'Est

BIRDS

Bobwhite, Northern (Colinus virginianus)

Colin de Virginie

REPTILES

Snake, Lake Erie Water (Nerodia sipedon insularum)

Couleuvre d'eau du lac Érié

PART 2

THREATENED SPECIES

MAMMALS

Caribou, Peary (Rangifer tarandus pearyi) Low Arctic population

Caribou de Peary population du bas Arctique

Mole, Townsend's (Scapanus townsendii)

Taupe de Townsend

Porpoise, Harbour (Phocoena phocoena) Northwest Atlantic population

Marsouin commun population du Nord-Ouest de l'Atlantique

Whale, Beluga (Delphinapterus leucas) Eastern Hudson Bay population

Béluga population de l'est de la baie d'Hudson

Whale, Humpback (Megaptera novaeangliae) North Pacific population

Rorqual à bosse population du Pacifique Nord

BIRDS

Shrike, Prairie Loggerhead (Lanius ludovicianus excubitorides)

Pie-grièche migratrice des Prairies

REPTILES

Turtle, Blanding's (Emydoidea blandingi) Nova Scotia population

Tortue mouchetée population de la Nouvelle-Écosse

FISH

Cisco, Blackfin (Coregonus nigripinnis)

Cisco à nageoires noires

Cisco, Shortjaw (Coregonus zenithicus)

Cisco à mâchoires égales

Cisco, Shortnose (Coregonus reighardi)

Cisco à museau court

Redhorse, Black (Moxostoma duquesnei)

Chevalier noir

Redhorse, Copper (Moxostoma hubbsi)

Chevalier cuivré

Sculpin, Deepwater (Myoxocephalus thompsoni) Great Lakes population

Chabot de profondeur des Grands Lacs population des Grands Lacs

Whitefish, Lake (Coregonus clupeaformis) Lake Simcoe population

Grand corégone population du lac Simcoe

PLANTS

Chestnut, American (Castanea dentata)

Châtaignier d'Amérique