FEDERAL REG

Order Amending Schedule 1 to the Species at Risk Act (2017) (1)

PROPOSED FEDERAL REGULATION - VIA PART I OF THE GAZETTE

Proposed
March 11, 2017


REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Order.) Issues Biodiversity is rapidly declining worldwide as species become extinct. (see footnote 1) Today’s extinction rate is estimated to be between 1 000 and 10 000 times higher than the natural rate. (see footnote 2) Biodiversity is positively related to ecosystem productivity, health and resiliency (see footnote 3) (... (Click for more)


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Published on March 11, 2017

Bill Summary

Order Amending Schedule 1 to the Species at Risk Act (2017) (1)

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)
Issues

Biodiversity is rapidly declining worldwide as species become extinct. (see footnote 1) Today’s extinction rate is estimated to be between 1 000 and 10 000 times higher than the natural rate. (see footnote 2) Biodiversity is positively related to ecosystem productivity, health and resiliency (see footnote 3) (i.e. the ability of an ecosystem to respond to changes or disturbances), and, given the interdependency of species, a loss of biodiversity can lead to decreases in ecosystem function and services (e.g. natural processes such as pest control, pollination, coastal wave attenuation, temperature regulation and carbon fixing). These services are important to the health of Canadians, and also have important ties to Canada’s economy. Small changes within an ecosystem can lead to a loss of individuals and species resulting in adverse, irreversible and broad-ranging effects.

The proposed order to amend Schedule 1 of the Species at Risk Act (SARA or the Act) pertains to 11 migratory birds:

Bank Swallow (Riparia riparia)
Barn Swallow (Hirundo rustica)
Bobolink (Dolichonyx oryzivorus)
Cerulean Warbler (Setophaga cerulea)
Eastern Meadowlark (Sturnella magna)
Eastern Wood-pewee (Contopus virens)
Grasshopper Sparrow pratensis subspecies (Ammodramus savannarum pratensis)
Hooded Warbler (Setophaga citrina)
Western Grebe (Aechmophorus occidentalis)
Wood Thrush (Hylocichla mustelina)
Yellow-breasted Chat virens subspecies (Icteria virens virens)

Pursuant to section 27 of SARA, the Governor in Council (see footnote 4) is proposing the Order Amending Schedule 1 to the Species at Risk Act (the proposed Order) to add these species to, to reclassify them in or to remove them from Schedule 1 of the Act.
Background

Canada’s natural heritage is an integral part of its national identity and history. Wildlife is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, subsistence, medical, ecological and scientific reasons. Canadian wildlife species and ecosystems are also part of the world’s heritage. (see footnote 5) Part of the mandate of the Department of the Environment (the Department) is to preserve and enhance the quality of the natural environment, including flora and fauna. Although the responsibility for the conservation of wildlife in Canada is shared among governments, the Department of the Environment plays a leadership role as federal regulator in order to prevent terrestrial species from becoming extinct (see footnote 6) or extirpated (see footnote 7) from Canada. The Parks Canada Agency contributes to the protection and conservation of these species within its network of protected heritage places, including national parks and national marine conservation areas.

The primary federal legislative mechanism for delivering on this strategy is SARA. The purposes of SARA are to prevent wildlife species from becoming extirpated from Canada or extinct, to provide for recovery of wildlife species that are listed as extirpated, endangered or threatened and to manage species of special concern to prevent them from becoming endangered or threatened. At the time of proclamation in 2003, the official list of wildlife species at risk (Schedule 1 of SARA) included 233 species. Since then, the list has been amended on a number of occasions to add, remove or reclassify species. There are currently 521 species listed on Schedule 1, which classifies those species as being extirpated, endangered, threatened, or of special concern.

With the proclamation of SARA in 2003, the Act established the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) (see footnote 8) as the body responsible for providing the Minister of the Environment with assessments of the status of Canadian wildlife species that are at risk of disappearing from Canada. The assessments are carried out in accordance with section 15 of SARA which, among other provisions, requires COSEWIC to determine the status of species it considers and to identify existing and potential threats. COSEWIC members meet twice annually to review information collected on wildlife species and assign each wildlife species to one of seven categories: extinct, extirpated, endangered, threatened, special concern, data deficient, or not at risk. (see footnote 9)

After COSEWIC provides its assessments of species at risk to the Minister of the Environment, the Minister has 90 days to post a response statement on the Species at Risk Public Registry (SAR Registry) indicating how the Minister intends to respond to the assessment and related anticipated timelines. These statements outline the extent of consultations on proposed changes to Schedule 1 of SARA.

Subsequent to the consultations and required analysis being carried out, the GIC formally acknowledges its receipt of the COSEWIC assessments. This then triggers a regulatory process through a proposed order whereby the GIC may, within nine months of receipt of the assessment, on the recommendation of the Minister:

(1) add a wildlife species to Schedule 1 of SARA according to COSEWIC’s status assessment;
(2) not add the wildlife species to Schedule 1; or
(3) refer the assessment back to COSEWIC for further information or consideration.

If the GIC does not make a decision within nine months of its formal receipt of the COSEWIC assessments, SARA states that the Minister shall amend Schedule 1 according to those assessments. This timeline does not apply to reclassifications of a listed species in Schedule 1 or to the removal of a listed species from that schedule.

Reclassification is important so that the designation is consistent with the latest available scientific information, thus allowing for better decision-making regarding the species in terms of its conservation prioritization. Species are up-listed when their status has deteriorated since their last assessment. When the status improves, they can be down-listed or delisted to ensure that the species are protected according to the purposes of SARA while minimizing impacts on stakeholders and resources.

Upon listing, wildlife species benefit from various levels of protection, which vary depending on their status. All species in this proposed Order are migratory birds protected under the Migratory Birds Convention Act, 1994 (MBCA). The MBCA and its regulations protect migratory birds, their nests and eggs against possessing, buying, selling, exchanging, giving or making it the subject of a commercial transaction, wherever they are found in Canada, regardless of land ownership, and including surrounding ocean waters. The MBCA and its regulations also prohibit depositing substances harmful to birds in waters or areas frequented by them. Additionally, the Migratory Birds Regulations prohibit hunting migratory birds (see footnote 10) as well as disturbing, destroying or taking a nest, egg, nest shelter, eider duck shelter or duck box of a migratory bird. These protections are considered comparable to the protections afforded under SARA to individuals of threatened, endangered and extirpated species and their residences. These protections remain in effect when a migratory bird is listed in Schedule 1 of SARA.

Table 1 below summarizes the various SARA protections afforded following listing to Schedule 1 of SARA.

Table 1: Summary of protections offered to migratory birds protected by the MBCA and their residences immediately upon their addition to Schedule 1 of SARA
Status General Prohibitions Application of Prohibitions
Protection of Individuals (SARA, section 32) Residence Protection (SARA, section 33)
Special concern SARA general prohibitions do not apply. However, individuals and their eggs are protected everywhere they are found in Canada by the MBCA. SARA residence protection does not apply. However, nests are protected everywhere they are found in Canada by the MBCA. While SARA protections do not apply to species of special concern, the MBCA protections continue to apply everywhere in Canada.
Threatened, endangered(see footnote 11) and extirpated Protection for individuals of the species everywhere they are found in Canada against being killed, harmed, harassed, captured or taken. Prohibition against the possession, collection, buying and selling or trading of an individual of the species or any part or derivative of this individual. Under the MBCA, individuals and their eggs are protected everywhere they are found in Canada. It is an offence to damage or destroy the residence of one or more individuals of a threatened or endangered species everywhere they are found in Canada. The residence of extirpated species is only protected if a recovery strategy recommends reintroduction into the wild. Under the MBCA, nests and nest shelters are protected everywhere they are found in Canada, but critical habitat is not. In addition to the MBCA protections, SARA protects against killing, harming and harassing, possessing, collecting, buying, selling or trading of individuals, their nests and their eggs. For endangered and threatened species, this also includes protection against the damage or destruction of their residences everywhere in Canada.
Permits issued under SARA

A person intending to engage in an activity that could contravene one or more of the SARA prohibitions must apply to the competent minister (see footnote 12) for a permit under section 73 of the Act. A permit may be issued if the Minister is of the opinion that the activity meets one of three purposes:

(a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons;
(b) the activity benefits the species or is required to enhance its chance of survival in the wild; or
(c) affecting the species is incidental (see footnote 13) to the carrying out of the activity.

The permit may only be issued if the competent minister is of the opinion that the following three pre-conditions are met:

(a) all reasonable alternatives to the activity that would reduce the impact on the species have been considered, and the best solution has been adopted;
(b) all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals; and
(c) the activity will not jeopardize the survival or recovery of the species.

According to section 74 of SARA, if another Act of Parliament (e.g. MBCA or Canada National Parks Act [CNPA]) has the same effect as SARA and a permit under this other act can authorize an activity affecting a species (individuals and/or populations) and their residences, a SARA permit will not be required. In those situations, SARA-compliant permits may be issued.

Since the MBCA prohibitions have the same effect on the protection of the individuals and the nests, a SARA-compliant MBCA permit may be issued to authorize an activity affecting a listed migratory bird, instead of issuing two separate permits. In order for a single permit to be issued, however, all three pre-conditions [items (a), (b), and (c) above] required for the issuance of a permit issued under SARA must be met. The MBCA does not allow for incidental take permits to be issued; therefore, SARA incidental take permits [item (c) in the list of purposes above] cannot be issued for migratory bird species, as the permitted activities would contravene the MBCA and its regulations. Therefore, a SARA-compliant MBCA permit can only be issued for an activity whose main purpose is either scientific research for the conservation of the species or another activity benefiting the species or required to enhance its chance of survival in the wild, as indicated in the purposes (a) and (b) above.

Permits issued under SARA can be issued if an activity affects the residence of a migratory bird if that residence is not a nest protected under the MBCA. Permits can also be issued for activities affecting the critical habitat of a listed migratory bird, because critical habitat is not protected under the MBCA.
Recovery planning

Listing a species under an endangered, threatened or extirpated status triggers mandatory recovery planning, by the competent minister, in order to address threats to the survival or recovery of these listed species. For species of special concern, a management plan must be developed within three years of listing.

SARA states that a proposed recovery strategy must be posted on the SAR Registry:

Endangered species: within one year of listing; and
Threatened and extirpated species: within two years of listing.

Recovery strategies include

the description of the species;
the threats to species survival;
the identification of critical habitat (i.e. the habitat necessary for the recovery or survival of a listed wildlife species) or a schedule of studies required for the identification of critical habitat;
the statement of population and distribution objectives for the species (i.e. the number of individuals, populations and/or geographic distribution of the species required to successfully recover the species); and
a statement of the time frame for the development of one or more action plans.

Recovery strategies must be prepared in cooperation with

appropriate provincial or territorial governments;
other federal ministers with authority over federal lands where the species is found;
wildlife management boards authorized by a land claims agreement;
directly affected aboriginal organizations; and
any other person or organization that the competent minister considers appropriate.

Recovery strategies may also be prepared in consultation with landowners (including provinces and territories) or other persons whom the competent minister considers to be directly affected by the strategy.

Once a recovery strategy has been posted as final, the competent minister must then prepare one or more action plans based on the recovery strategy. Action plans are also prepared in consultation with the above-mentioned organizations and persons. SARA does not mandate timelines for their preparation or implementation; rather, these are set out in the recovery strategy. Action plans must include

an identification of critical habitat, to the extent possible, if not already identified, consistent with the recovery strategy;
examples of activities likely to destroy critical habitat;
a statement of the measures that are proposed to protect the critical habitat of the species, including entering into conservation agreements under section 11 of SARA;
an identification of any portions of critical habitat that have not been protected;
methods to be used to monitor the recovery of the species and its long-term viability;
an evaluation of the socio-economic costs of the action plan and the benefits from its implementation; and
any other matters that are prescribed by regulations.

It may not always be possible to identify critical habitat in a recovery strategy or action plan, and, in those cases, a schedule of studies outlining the activities required to obtain the information necessary to complete the identification of critical habitat will be included in the recovery strategy or action plan.
Protection of critical habitat

If the critical habitat or a portion of it for the listed wildlife species is not located in a federally protected area but is located on federal land, in the exclusive economic zone of Canada, on the continental shelf of Canada, or anywhere in Canada, and the listed wildlife species is an aquatic species or a species of migratory bird protected by the MBCA, the competent minister is required to make an order for the application of subsection 58(1), thereby protecting the critical habitat from destruction.

If critical habitat is located in a migratory bird sanctuary under the MBCA, (see footnote 14) in a national park described in Schedule 1 of the CNPA, in the Rouge National Urban Park established by the Rouge National Urban Park Act, in a marine protected area under the Oceans Act, or in a national wildlife area under the Canada Wildlife Act, the competent minister must publish a description of that critical habitat in the Canada Gazette within 90 days of the date that the critical habitat was identified in a final recovery strategy or action plan. Ninety days after this description of critical habitat is published in the Canada Gazette, the critical habitat protections under subsection 58(1) of SARA (i.e. prohibiting the destruction of critical habitat) come into effect automatically, and critical habitat located in the federally protected area is legally protected under SARA.

In the case of migratory birds that are protected under the MBCA, if the critical habitat or portions of it are identified outside of federal lands, in the exclusive economic zone of Canada, on the continental shelf of Canada or in a migratory bird sanctuary under the MBCA, the prohibition against destruction can only apply to those portions of the critical habitat that are habitat to which the MBCA applies. In this case, an order is made under subsection 58(5.1) by the Governor in Council on the recommendation of the Minister of the Environment. Under SARA, the Minister of the Environment must make the recommendation to the Governor in Council within 180 days of the publication of the recovery strategy or action plan that identifies the critical habitat, unless he or she is of the opinion that the critical habitat is legally protected by provisions in, or measures under SARA or any other federal legislation, including conservation agreements under section 11 of SARA. If the critical habitat is already protected, the Minister of the Environment need not make the recommendation. However, he or she must include in the public registry a statement setting out how the critical habitat to which the MBCA applies or portions of it are legally protected [application of subsection 58(5.2)].

For the remaining portions of critical habitat in a province or territory to which the MBCA does not apply, the Minister may make a recommendation to the Governor in Council to make an order under subsection 61(4) if he or she is of the opinion that the critical habitat is not effectively protected.
Management of species of special concern

The addition of a species of special concern to Schedule 1 of SARA serves as an early indication that the species requires attention. Triggering the development of a management plan at this stage enables the species to be managed proactively, maximizes the probability of success, and is expected to avoid higher-cost measures in the future.

The management plan includes conservation measures deemed appropriate to preserve the wildlife species and avoid a decline of its population. It is developed in cooperation with the relevant provincial and territorial governments, other federal government departments, wildlife management boards, Indigenous partners and organizations and any appropriate stakeholders, and must be posted within three years of listing.
Objectives

The objective of the proposed Order is to help maintain Canada’s biodiversity and the well-being of Canadian ecosystems by preventing wildlife species from becoming extirpated from Canada or extinct and contribute to their recovery.
Description

The proposed Order pertains to eleven migratory bird species, as shown in Table 2 below. Of the eleven species,

Two species already protected under SARA are being proposed for up-listing;
Eight species are new additions; and
One species is proposed for delisting.

A description of each species, their ranges and threats, is found in Annex 1. Additional information on these species can also be found in the COSEWIC status reports. (see footnote 15)

Table 2 — Proposed modifications to Schedule 1 of SARA for 11 migratory bird species
Legal Population Name Scientific Name Current Status Proposed Status Range
Species proposed for addition to Schedule 1 of SARA
Bank Swallow Riparia riparia None Threatened Canada-wide
Barn Swallow Hirundo rustica None Threatened Canada-wide
Bobolink Dolichonyx oryzivorus None Threatened All provinces
Eastern Meadowlark Sturnella magna None Threatened Ontario, Quebec, New Brunswick, Nova Scotia
Eastern Wood-pewee Contopus virens None Special concern Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Prince Edward Island, Nova Scotia
Grasshopper Sparrow pratensis subspecies Ammodramus savannarum pratensis None Special concern Ontario, Quebec
Western Grebe Aechmophorus occidentalis None Special concern British Columbia, Alberta, Saskatchewan, Manitoba
Wood Thrush Hylocichla mustelina None Threatened Ontario, Quebec, New Brunswick, Nova Scotia
Species proposed for reclassification in Schedule 1 of SARA
Cerulean Warbler Setophaga cerulea Special concern Endangered Ontario, Quebec
Yellow-breasted Chat virens subspecies Icteria virens virens Special concern Endangered Ontario
Species proposed to be removed from Schedule 1 of SARA
Hooded Warbler Setophaga citrina (see footnote 16) Threatened Not at risk Ontario
Benefits and costs

The quantitative and qualitative incremental impacts (benefits and costs) of the proposed Order were analyzed. Incremental impacts are defined as the differences between the baseline situation and the situation in which the proposed Order is implemented over the same period. The baseline situation includes activities ongoing on federal lands where a species is found, and incorporates any projected changes over the next 10 years (2017–2026) that would occur without the proposed Order in place.

An analytical period of 10 years (2017–2026) was selected as the status of the species must be reassessed by COSEWIC every 10 years. Costs provided in present value terms are discounted at 3% over the period of 2017–2026. Unless otherwise noted, all monetary values reported in this analysis are in 2015 Canadian dollars.

Any decision about whether to take action to prevent a species from becoming extirpated involves three issues that do not usually occur simultaneously in most cost-benefit analyses:

(1) There is uncertainty about whether the effort to prevent extirpation would be successful.
(2) The benefits of protecting the species are known with less certainty than the costs, making a calculation of probable net benefits difficult due to limited information.
(3) A decision to protect could be reversed in the future, if need be. However, a decision against protection that results in the loss of the species cannot be reversed.

To reflect these challenges, this cost-benefit analysis presents the best available information and economic analysis possible. Preventing the extirpation of these species would likely result from a combination of the proposed Order and additional protection measures undertaken by various levels of governments, Indigenous peoples and stakeholders. Therefore, the benefits presented cannot be attributed to the proposed Order alone. They are provided here for context.

Overall, the analysis did not reveal any major impacts on Indigenous peoples and stakeholders.
Benefits

The key benefit of the proposed Order is that recovery strategy and action plan development will be triggered for 7 of the 11 species. These documents enable coordinated action by responsible land management authorities wherever the species are found in Canada. Improved coordination among authorities may increase the likelihood of species survival. This process will also provide an opportunity for consideration of the impact of measures to recover the species and for consultation with Indigenous peoples and stakeholders.

The designation of species added to Schedule 1 of SARA determines the allocation of resources to manage and/or recover the species. Designations that reflect the best available scientific information ensure species can be protected according to the purposes of SARA, while minimizing impacts on stakeholders and resources.

More generally, preventing the extirpation of a given species via a variety of actions, including those taken under SARA, such as implementing this proposed Order, contributes to overall biodiversity. More diverse ecosystems are generally more stable and less subject to malfunction; therefore, the benefits (goods and services) they provide are also more stable over time.
Total economic value

Using the total economic value framework, the analysis found that the birds in the proposed Order provide the following use values.

Pest and weed control: many bird species are beneficial by controlling pests on agricultural land as a large percentage of their summer diet comprises crop-damaging insects (i.e. caterpillars, grasshoppers, ants, wasps, flies, beetles, mayflies).
Nutrient cycling and seed dispersal: many bird species, including migratory birds, distribute nutrients derived from the consumption of insects, fruit, seeds and fish (see footnote 17) and disperse seeds within ecosystems.
Birding and eco-tourism: according to the 2012 Canadian Nature Survey, 4.7 million Canadians engage in birding activities yearly (18% of the total population).
Research: the Barn Swallow in particular is a popular research bird in North America, informing scientists on climate change, ecto-parasites and breeding, natural selection and group living behaviour.

There is also an option value associated with these species, i.e. Canadian residents and firms may hold a value associated with the preservation of Canadian genetic information that may be used in the future for biological, medicinal, genetic engineering and other applications. Economic theory also suggests there is a benefit to erring on the side of avoiding an irreversible outcome (i.e. extinction). (see footnote 18)

Finally, the 11 migratory birds have a non-use value, which includes the value of knowing a species exists despite never observing it directly, and the value of knowing future generations will be able to enjoy the species. These values contribute to the well-being of Canadians.

Several studies estimate willingness to pay values for the preservation of iconic or charismatic species, concluding that charismatic species generally attract higher values than non-charismatic ones, thus providing greater social benefits. (see footnote 19), (see footnote 20) While no criteria have been formally established for designation of an “iconic” species in Canada, the Western Grebe may be of greater value to Canadians given its well-known and elaborate courtship displays. As well, Bobolink, Barn Swallow and Eastern Wood-pewee are highly recognized by Canadians.

One study (see footnote 21) found that Irish farmers are willing to pay on average the equivalent of $15.91 to $18.92 per year for the conservation of a rare farmland migratory bird species, the Corncrake, threatened by mowing and other agricultural activities. Another relevant paper (see footnote 22) estimated that an average household in the Netherlands is willing to pay the equivalent of $24.70 annually for the protection of endangered migratory birds. In terms of iconic birds, a key meta-analysis (see footnote 23) on threatened and endangered species has found that U.S. households are willing to pay, on average, between $24.81 and $133.57 per household per year to prevent the loss of one iconic bird species. These studies may be indicative of the value that Canadian individuals or households place on the species in this proposed Order.
Costs

In terms of incremental costs, the following matters were considered:

Costs to Indigenous peoples and stakeholders of complying with general prohibitions;
Potential implications of a critical habitat protection order, if one is required in the future
• Since critical habitat is only identified in a recovery strategy or action plan following listing, the extent of critical habitat identification is unknown. The need for and the form of future measures are not known at the time of listing. Hence, the analysis of potential changes to critical habitat protections resulting from the proposed Order is illustrative, based upon best available information at this stage;
Government costs of recovery strategy, action plan or management plan development, permit applications and issuance, compliance promotion and enforcement; and
Implications for environmental assessments.

It is important to note a distinction regarding critical habitat on non-federal lands. If any future critical habitat identified on non-federal lands that is not covered under the MBCA is determined by the competent Minister to be insufficiently protected, a decision to issue an order to protect that critical habitat would be made by the Governor in Council. Any such future decision could not be considered an incremental impact of this proposed Order.
Costs associated with general prohibitions

As mentioned earlier in the document, the 11 bird species included in the proposed Order are migratory birds that are protected by the MBCA everywhere they are found in Canada. This means that no incremental costs associated with complying with the general prohibitions under SARA can be expected for stakeholders because no additional compliance activities will result from adding the species to Schedule 1 of SARA.

Upon listing of an MBCA species as threatened or endangered under SARA, currently active and future permits would need to also meet the requirements of subsections 73(2) to (6.1) and 73(7) of SARA. In most cases, the incremental effort to do so would essentially be limited to the applicant providing the necessary data to demonstrate that certain pre-conditions have been met, and some additional review by officials. There would be no change to permit applications on Parks Canada lands.

It is estimated that it may take an applicant approximately an additional 30 minutes to update an MBCA permit that would already exist under the baseline scenario, and around 2 hours to apply for any additional permits.
Potential critical habitat protections

The majority of species in this proposed Order have wide ranges and wide habitat specificity, meaning that a “landscape approach” would likely be used when identifying critical habitat. In general, landscape-level identifications of critical habitat would involve ensuring a condition of the landscape that provides the necessary quantity and quality of habitat for the species to fulfill its needs is protected rather than protecting highly specific locations, although in some cases there may be specific site-based habitat features within the critical habitat that need protection. Accordingly, the activities considered likely to destroy critical habitat would typically be those with a broad landscape-level impact (e.g. clear-cutting a forest), as opposed to smaller-scale activities like ATV use. In cases where there is more suitable habitat than is required to meet the population and distribution objectives, it may be possible to identify critical habitat in a manner that reduces socio-economic impacts.

The identification of critical habitat is a science-based process that uses the best available information and is guided by a framework (see footnote 24) designed to be flexible enough to adapt to the various situations encountered by recovery practitioners, but structured enough to provide consistency in how critical habitat is identified and presented. The identification of critical habitat in federal recovery documents is reviewed by partners, stakeholders and jurisdictions and is also open to a public consultation process.

If critical habitat (see footnote 25) for a listed species is identified during the creation of a recovery strategy or an action plan, and federal legislation does not already protect the habitat, the competent minister is obligated under subsection 58(4) of SARA to make a Critical Habitat Protection Order to put protections for that habitat in place. In the event such an order is made, it would be considered an incremental impact of the decision to list a species. The analysis does not consider potential orders outside federal lands made under subsection 58(5.1) as these would require a separate GIC decision, and the incremental impacts of such an order would be examined at that time.

However, there is a great deal of uncertainty at the time of listing over whether any such order would ever occur and where it would apply because critical habitat is only identified during the development of a recovery strategy (which establishes the population and distribution objectives for the species) or subsequently in an action plan, after a species is listed or reclassified as extirpated, endangered or threatened. At the time of listing, the amount and location of critical habitat needed to meet the population and distribution objectives is unknown, as is whether critical habitat will be identified on federal lands.

The listing of the three species of special concern would not trigger critical habitat identification. As for the Hooded Warbler, the delisting of the species eliminates the potential that a critical habitat protection order on federal lands would be issued.

For all other species, to address the uncertainty associated with the lack of defined critical habitat at the time of the proposed listing, the analysis assumed that all suitable land for breeding, nesting, feeding, foraging, and roosting on federal land within the range of each species could possibly be identified as critical habitat and consequently protected under a critical habitat protection order. This is a conservative approach, since the critical habitat to be identified in the future might only comprise a portion of the range of a species. Nonetheless, all hypothetical impacts of a critical habitat protection order on stakeholders active on federal lands within the range of the species are examined. This ensures that any potential impacts to stakeholders have been examined for any scenario in which critical habitat protection could be put in place on federal land.

This analysis focused on economic activities occurring within the range of the species, specifically on federal lands. The definition of federal lands includes First Nation’s Reserves and any other lands that are set apart for the use and benefit of a band under the Indian Act and all the waters on and airspace above those reserves and lands. However, nothing in SARA can be construed so as to abrogate or derogate from the protection provided for existing Aboriginal or treaty rights of the Indigenous Peoples of Canada, recognizing and affirming those rights as set out in section 35 of the Constitution Act, 1982.

The analysis used Geographical Information Systems (GIS) to determine economic activities on federal land where the species occur. Databases of federal properties (see footnote 26) and Indigenous lands (see footnote 27) were overlaid with the ranges of the species. Combined with major known threats to survival in Canada, as identified by COSEWIC, this approach provides a conservative view on potential changes for stakeholders arising from critical habitat protection.

Given the threats identified by COSEWIC, the following sectors, which have been or could be active on federal lands, have the potential to affect any future critical habitat of the species: agriculture, logging and forestry, aggregate extraction, mining, urban development, flood control and erosion control. Despite this broad scope, and the uncertainties involved, analysis at this time did not reveal any major impacts. Existing protections for birds, nests and nest shelters under the Migratory Birds Regulations (MBR) and the MBCA are comparable to SARA’s protections for residences and individuals. Thus where there is critical habitat on federal land that is also in use by the industries mentioned above, the existing MBCA protections lessen the incremental impacts to industry of SARA’s critical habitat protections. Although there are certain exceptions (e.g. overgrazing by livestock can decrease breeding habitat without harming nests), given the limited scope of these activities on federal lands, and the flexibilities inherent in defining critical habitat for species that exist across Canada, incremental costs associated with critical habitat protection on federal lands are likely to be low.
Recovery strategy and action plan / management plan development

Some administrative costs for the development of recovery strategies, action plans and management plans would be incurred by the federal government. Recovery plan and action plan development is estimated to cost $40,000 to $50,000 per species, for a total present value of $240,700 to $300,900 for the species in this group. The development of a management plan for the three species of special concern is expected to cost $10,000 per species, for a total present value of $26,700.
Enforcement and compliance promotion

No additional enforcement effort is anticipated beyond existing efforts to enforce the MBCA; therefore, no additional costs would arise.

A Compliance Promotion Plan has been drafted for the proposed Order and it is anticipated that compliance promotion activities would cost approximately $10,000 to the Government of Canada during the year following the coming into force of the proposed Order. Compliance promotion activities would include the following: updates to the Species at Risk Public Registry, outreach to federal land managers and Indigenous peoples to help them understand their obligations under SARA, materials for industry sectors, which may perceive the proposed Order as having negative impacts on their activities, and information on the species and their occurrence on federal lands provided to departmental enforcement officers.
Permitting

Based on data for existing MBCA permits, as well as estimates of additional future scientific permits for each of the species, the incremental costs to the Government of Canada (including additional expenses and labour) associated with permitting could be within the range of $15,000–30,000 annually, or $130,000–$260,000 in present value terms over 10 years. This includes costs associated with updating currently active permits and issuing new ones due to a possible increase in the number of scientific permits requested.
Implications for environmental assessments

Generally speaking, there could also be some implications for projects (see footnote 28) required to undergo an environmental assessment by or under an Act of Parliament (hereafter referred to as “federal EA”).

Proponents already need to meet the requirements of the MBCA and the MBR if a project undergoing a federal EA could potentially affect any of these species directly (although they are not required to assess potential damage to the critical habitat of a species). Also, federal EA guidelines already recommend that proponents evaluate effects on species already assessed by COSEWIC that may become listed on Schedule 1 of SARA in the near future. Overall, any incremental costs are expected to be minimal relative to the total costs of performing a federal EA; no attempt has been made to quantify these potential costs.
“One-for-One” Rule

The “One-for-One” Rule does not apply, because the proposed additions to Schedule 1 of SARA would not impose new administrative costs on business.
Small business lens

The small business lens does not apply to this proposal, as there would be no administrative burden imposed on small businesses.
Consultation

Under SARA, the independent scientific assessment of the status of wildlife species conducted by COSEWIC and the decision made by the GIC to afford legal protection by placing a wildlife species on Schedule 1 of the Act are two distinct processes. This separation guarantees that scientists may work independently when assessing the biological status of wildlife species and that Canadians have the opportunity to participate in the decision-making process of determining whether or not wildlife species will be listed under SARA to receive legal protections.

The Department of the Environment begins initial public consultations with the posting of the Minister’s response statements on the Species at Risk Public Registry within 90 days of receiving a copy of an assessment of the status of a wildlife species from COSEWIC. Indigenous peoples and organizations, stakeholders and the general public are also consulted by means of a publicly posted document titled Consultation on Amending the List of Species under the Species at Risk Act: Terrestrial Species. This was published in December 2010 (Bobolink), December 2011 (Barn Swallow, Cerulean Warbler and Eastern Meadowlark), December 2012 (Hooded Warbler), December 2013 (Bank Swallow, Eastern Wood-pewee and Wood Thrush) and January 2015 (Western Grebe and Grasshopper Sparrow pratensis subspecies) for the species included in this proposed Order.

The consultation documents provide information on the species, including the reason for their designation, a biological description and location information. They also provided an overview of the listing process. These documents were distributed directly to over 3 600 recipients, including Indigenous peoples and organizations, wildlife management boards, (see footnote 29) provincial and territorial governments, various industrial sectors, resource users, landowners and environmental non-governmental organizations.
Consultations results summary

Ninety-eight comments were received pertaining to the eleven bird species included in this regulatory package. Comments were received from provinces, territories, federal agencies, NGOs, First Nations, Indigenous organizations, wildlife management boards, individuals, municipalities and businesses. More than 85% of comments received supported or did not oppose the modifications to Schedule 1 of SARA, while fifteen comments specifically opposed the listing of species or expressed concerns with the impacts of listing.

The opposing comments were received from provinces, individuals, businesses, associations and one First Nation.
Abundance of the species

Some of the opposing comments argued that the species is abundant in a specific area and questioned the dataset used, with some commenters indicating that the species would be more accurately designated at a lower level in their area whereas it can be designated at a higher risk level elsewhere in the country. The Department of the Environment notes that the purpose of SARA is to prevent the extinction of species and provide for their recovery in Canada as a whole, as opposed to individual provincial jurisdictions. In order for a subspecies to be recognized, populations have to be significant or discrete from those found in other regions of Canada, which is not the case for any of the migratory bird species specified in the proposed Order.

Bobolink: There is no indication that the population is increasing in the Prairies; however, between 1987 and 2006 the Breeding Bird Survey (BBS) data indicates that while Bobolinks were abundant in southern Manitoba and parts of Ontario and Quebec, they were not abundant in Saskatchewan, Alberta or British Columbia. Coming from a lower abundance than that recorded in the eastern range, the decline in the west may be not as severe as the east. Trend information updated since the COSEWIC status report continues to show declines. Trends for 1970 to 2012 indicate an annual decline of 3.98% per year for Alberta, of 1.06% per year for Manitoba and of 1.5% per year in Saskatchewan. The short-term trend (2002–2012) for all three provinces are also showing signs of decline for the species, with average declines of 3.4% per year in Alberta, 0.91% per year in Manitoba and 1% per year in Saskatchewan. The decline is indeed more severe in the east according to long-term data (1970–2012), which shows declines of 2.92% per year in Ontario, 4.22% per year in Quebec, 3.82% per year in New Brunswick and 4.85% per year in Nova Scotia. This data indicates a long-term decline of the species throughout its Canadian range.

In addition, the Department notes that there is a specific temporal boundary for threatened species: three generations or 10 years, whichever is longest (which, in the case of the Bobolink, is 10 years). The Department considers the Breeding Bird Survey as a suitable method for surveying Bobolinks, because many surveys are carried out in open habitat, where the species occurs, and Bobolinks can be easily detected by their song and flight. The BBS covers virtually the entire range of Bobolinks in Canada and surveying is often on roads that have little traffic. The same roads and survey methods have been used for over 30 years, ensuring consistency of the surveys.

Barn Swallow: The causes of the declines of the Barn Swallow would likely be the subject of a series of recommended studies in the recovery strategy and action plan. Although the species has a large range in Canada, the scientific literature indicates that its abundance has undergone important declines. There has been a significant decline of approximately 30% in the total number of mature individuals over the last 10 years (1999–2009) based on an appropriate index of abundance (i.e. the Breeding Bird Survey). Population declines are a widely accepted assessment criteria for species at risk, even for widespread and abundant species.

Bank Swallow: Although the species has a large range in Canada, its abundance has undergone important declines. There has been an observed 31% decline in the total number of mature individuals over the last 10 years based on an appropriate index of abundance (Breeding Bird Survey). (see footnote 30) In addition, a number of other surveys and information sources were also examined, including the Breeding Bird Atlases for Ontario, Alberta, Quebec and the Maritimes, the Canadian Migration Monitoring Network, the Étude des populations d’oiseaux du Québec, and the Ontario Bank Swallow Research and Monitoring Project. All Breeding Bird Atlases considered indicated a significant decline in abundance or range contraction.

Eastern Wood-Pewee: The species was assessed as a species of special concern in Canada. This will not bring any additional general prohibitions or the identification of critical habitat. The species has experienced persistent declines over the past 40 years both in Canada and the United States. The 10-year decline of 25% comes close to satisfying the criteria for a threatened designation; however, since the threshold for this designation is a 30% decline over 10 years, this species was assessed as a species of special concern. The listing would not constrain business operations, since there will be no additional protection measures.

Wood Thrush: This species has undergone a 38% decline in population abundance in Canada in the past 10 years (2001–2011). The long-term Breeding Bird Survey data shows a statistically significant annual rate of decline of 4.29% between 1970 and 2011, for a population loss of 83% over the last 41 years. This rate of decline has increased slightly for the last 10 years, with an annual significant decline of 4.69%. The probability of a decline of at least 30% over the past 10 years is 89%, and is therefore a strong indication that this species is declining rapidly. Although the species uses habitat that is seemingly abundant in Eastern Canada, the species itself is no longer considered abundant due to the important declines it has experienced in the past 40 years. Because this species has a large range in Canada and requires some habitat disturbances, it is likely that critical habitat would be identified at a landscape scale, rather than at specific sites. This means that critical habitat would likely involve the protection of only a portion of the range of occurrence and that the area identified would need to meet specific habitat attributes. This protection would result in minimal constraints on businesses, while attempting to halt the population decline of the species.
Potential impact on agricultural or business operations

Some comments mention anticipated impacts on their agricultural operations or their business activities and indicate that the MBCA protections already in place should be sufficient to protect the species.

Migratory birds, their nests and their eggs are already afforded equivalent protection under the MBCA. A listing under SARA would not create an additional burden on Canadians. For those species with a large range in Canada, it is likely that critical habitat will be identified at a landscape scale, rather than at specific sites. In such cases, critical habitat will likely involve the protection of only a portion of the range of occurrence and that area will need to meet specific habitat attributes.

For the migratory birds included in this proposed Order that are more site-specific, the existing MBCA protections lessen the anticipated incremental impacts of SARA’s protections. If specific incremental measures were to be deemed necessary for site-specific critical habitat protection, SARA provides for the consideration of alternative mechanisms, such as stewardship agreements. These agreements can be used to provide conservation measures that are consistent with the Act, while accommodating a range of circumstances.
Removal of anthropogenic structures

Another type of comment is related to concerns over the ability to remove anthropogenic structures for health and safety reasons.

With respect to the operation, maintenance or modification of an existing man-made structure recognized as a residence, the Government of Canada would work with the landowners and managers of those structures to achieve compliance under SARA and promote species recovery. Under certain conditions, SARA provides that permits may be issued for activities that affect a listed wildlife species, its critical habitat or residences of its individuals. SARA also provides exceptions for certain activities that relate to public safety, health or national security, if these are authorized under an Act of Parliament. The Department will work with landowners and land managers to explore these options when situations concerning public health and safety arise. The Department also intends to reach out to stakeholders through compliance promotion activities to address concerns from agricultural and rural communities. More specifically, the Department would clarify that agricultural producers operating on non-federal lands are not facing new restrictions.
Public comment period following publication in the Canada Gazette, Part I

The Department of the Environment is committed to a collaborative process throughout the assessment, listing and recovery planning processes. The results of the public consultations are of great significance to the process of listing species at risk. The Department of the Environment carefully reviews the comments it receives to gain a better understanding of the benefits and costs of changing the list of wildlife species at risk.

The Minister of the Environment will take into consideration comments and any additional information received following the publication of the proposed Order and this Regulatory Impact Analysis Statement in the Canada Gazette, Part I.

Additional information on consultation results for all 11 species is provided for each species in Annex 1.
Rationale

Biodiversity is crucial to ecosystem productivity, health and resiliency, yet is rapidly declining worldwide as species become extinct. (see footnote 31) The proposed Order would support the survival and recovery of 10 species of migratory birds in Canada by affording legal protections and mandating recovery planning, thus contributing to the maintenance of biodiversity in Canada. In the case of threatened or endangered species, a listing under SARA would complement the protection that they already receive under the MBCA. In addition, these species would benefit from the development of recovery strategies and action plans that identify the main threats to species survival, as well as identify, when possible, the critical habitat that is necessary for their survival and recovery in Canada. Species listed as species of special concern would benefit from the development of a management plan, which includes measures for the conservation of the species.

The proposed Order would help Canada meet its commitments under the Convention on Biological Diversity. A strategic environmental assessment concluded that the proposed Order would result in important positive environmental effects. Specifically, that the protection of wildlife species at risk contributes to national biodiversity and protects ecosystem productivity, health and resiliency. Given the interdependency of species, a loss of biodiversity can lead to decreases in ecosystem function and services. These services are important to the health of Canadians and have important ties to Canada’s economy. Small changes within an ecosystem resulting in the loss of individuals and species can therefore have adverse, irreversible and broad-ranging effects.

This proposal has direct links with the Federal Sustainable Development Strategy for Canada 2013–2016 (FSDS). The proposed amendments to Schedule 1 of SARA would have important environmental effects and support Theme III, “Protecting Nature and Canadians,” of the FSDS. Under Theme III, these amendments would help fulfill Goal 4 (“Conserving and Restoring Ecosystems, Wildlife and Habitat, and Protecting Canadians”), one of its targets (“4.1 Species at Risk. By 2020, populations of species at risk listed under federal law exhibit trends that are consistent with recovery strategies and management plans” (see footnote 32)) and a number of implementation strategies.

The overall costs to the Government of $407,000 to $598,000 (present value) over 10 years, discounted at 3% to a base year of 2016, are limited to federal government actions related to recovery and management plan development, and compliance promotion and enforcement. No direct costs to businesses are currently anticipated.
Implementation, enforcement and service standards

Following the listing, the Department of the Environment would implement a compliance promotion plan. Compliance promotion initiatives are proactive measures that encourage voluntary compliance with the law through education and outreach activities and raise awareness and understanding of the prohibitions. Potentially affected Indigenous peoples and stakeholders would be reached in order to

increase their awareness and understanding of the proposed Order;
promote the adoption of behaviours that will contribute to the overall conservation and protection of wildlife at risk;
increase compliance with the proposed Order; and
enhance their knowledge regarding species at risk.

These objectives would be accomplished through the creation and dissemination of information products explaining the new prohibitions applicable on federal lands where they relate to those 10 species, the recovery planning process that follows listing and how stakeholders can get involved, as well as general information on each of the species. These resources will be posted on the Species at Risk Public Registry. Mail-outs and presentations to targeted audiences may also be considered as appropriate.

In Parks Canada heritage places, front-line staff are given the appropriate information regarding the species at risk found within their sites to inform visitors on prevention measures and engage them in the protection and conservation of species at risk.

Subsequent to listing, the preparation and implementation of recovery strategies, action plans or management plans may result in recommendations for further regulatory action for the protection of wildlife species. It may also draw on the provisions of other Acts of Parliament to provide required protection.

SARA provides for penalties for contraventions to the Act, including fines or imprisonment, seizure and forfeiture of things seized or of the proceeds of their disposition. Agreements on alternative measures may also be used to deal with an alleged offender under certain conditions. SARA also provides for inspections and search and seizure operations by enforcement officers designated under SARA. Under the penalty provisions of the Act, a corporation found guilty of an offence punishable on summary conviction is liable to a fine of not more than $300,000, a non-profit corporation is liable to a fine of not more than $50,000, and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. A corporation found guilty of an indictable offence is liable to a fine of not more than $1,000,000, a non-profit corporation to a fine of not more than $250,000, and any other person to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both.

The Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations, which came into effect on June 19, 2013, impose a 90-day timeline on the Government to either issue or refuse permits under section 73 of SARA authorizing activities that may affect listed wildlife species. The 90-day timeline may not apply in certain circumstances. These Regulations contribute to consistency, predictability and transparency in the SARA permitting process by providing applicants with clear and measurable service standards. The Department of the Environment measures its service performance annually, and performance information is posted on the Department’s website (see footnote 33) no later than June 1 for the preceding fiscal year.

This Bill does not amend any statutes.

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