What is an Emergency Order Under the Species At Risk Act?
Last month, I posted about the new Agreement for the conservation and recovery of the Woodland Caribou in Alberta signed between the Canada and Alberta governments. One of the themes in the history of caribou conservation across Canada is the federal and provincial governments failing to follow the timelines and requirements of Canada’s Species At Risk Act (SARA). As I’ll explain, while SARA establishes shared federal and provincial responsibility for species at risk conservation in Canada, provinces have the bulk of responsibility for managing threatened and endangered species. However, in cases where the provincial governments do not fulfill their responsibilities, SARA provides a mechanism that allows the federal government to intervene with what is called an emergency order to protect species and their habitat. But what is an emergency order, why didn’t it work to protect caribou, and what is the potential of this component of our species at risk legislation to prevent species extinctions?
As cliched as it is, many of us are familiar with a phrase attributed to the 19th century Prince of Bismarck that “there are two things you do not want to see being made – law and sausage”.
However, if you are here reading this, you probably have an interest in wild game and it is likely that you are, in fact, interested in making your own sausage. It is probably also safe to assume that you care about wildlife conservation and management. Therefore, you might also be interested in a somewhat obscure component of a law intended to prevent wildlife decline in Canada.
So, there we have it: we actually want to know more about both sausage and law. See this video for instructions on making sausage. Read on below for information on endangered species laws.
You might think I’m going down a bit of a rabbit hole digging into the obscure minutia of the Species At Risk Act. But I think it is something we should understand as hunters and conservationists. I also think there are more people like me out there who are interested in these details. Moreover, our ability to advocate for the most appropriate action on wildlife conservation sometimes requires a nuanced grasp of wildlife policy. Understanding what an emergency order is and how it works will also give some insight into the social, legal, and practical complexities of endangered species recovery.
We might still wonder, however, why the federal government is so reluctant to fully use the tools available to it, even in the face of critically imperiled species and their habitats.
Species At Risk Jurisdiction in Canada
Species at risk management and conservation in Canada was initiated when Canada signed the United Nations Convention on Biological Diversity (CBD) in 1992. Canada then developed a national framework to protect species at risk that consists of three main components that together establish shared responsibility for species conservation, an overarching legal mechanism for species protection, and long-term federal funding initiatives to support management.
In 1996, the federal, provincial, and territorial governments created the Accord for the Protection of Species at Risk to establish a collaborative approach to species at risk based on a set of shared responsibilities and jurisdiction. The Accord is the foundation for the principles of intergovernmental cooperation and puts a great deal of emphasis on stewardship to protect species at risk.
The Accord outlines commitments by federal, provincial and territorial ministers to designate species at risk, protect their habitats, and develop recovery plans as well as complementary legislation, regulations, policies and programs, including stewardship.Accord for the Protection of Species at Risk, 1996
As I described alongside Casey Pelzl in a more thorough post about species at risk frameworks in Canada and the U.S., originally published on the Hunt To Eat blog, jurisdiction for species at risk management in Canada is shared between the federal and provincial governments. The federal Species At Risk Act came into effect in 2003 and established the federal legislative framework for the protection of species and their habitats. However, the legal protections provided by SARA only automatically and immediately apply to migratory species, aquatic species, and federal lands.
Provincial governments have the bulk of responsibility for wildlife management, including managing species listed under SARA. Once a species is listed, section 42(2) of SARA requires provincial governments to identify the species’ critical habitat and develop management and recovery plans. Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba, and Newfoundland and Labrador have specific endangered species laws. British Columbia, Alberta, Saskatchewan, and Prince Edward Island do not have any stand-alone endangered species laws, a major gap in the national species at risk framework.
What is an Emergency Order?
Although the provinces have the primary responsibility for wildlife management, section 80 of the Species At Risk Act gives the federal government the ability to issue what is called an “Emergency Order” to intervene in species protections if a province does not adequately protect a species and its habitat.
Section 80 of SARA states that the Canadian government may, “on the recommendation of the competent minister, make an emergency order to provide for the protection of a listed wildlife species”. Importantly, section 80 does merely allow the federal Minister responsible for a species to make an emergency order. Rather, section 80(2) states that the federal minister “must make the recommendation if he or she is of the opinion that the species faces imminent threats to its survival or recovery”.
Section 80 provides important legislation discretion for the Minister and it also articulates the responsibility of the Minister to protect species when necessary.
Canada’s wildlife management framework is built on a foundation of cooperation between the federal, provincial, and territorial governments and respect for the concept of shared jurisdiction. The federal government has jurisdiction to manage certain groups of species, such as fish and migratory birds, and any species on federal lands, such as in National Parks. This foundation of cooperation and shared jurisdiction is what makes section 80 so serious.
Section 80 allows the federal government to issue emergency orders to intervene to protect species managed by the provincial governments on non-federal lands (e.g. provincial Crown lands). Specifically, section 80(4)(c)(ii) allows the federal minister to “identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and include provisions prohibiting activities that may adversely affect the species and that habitat”.
While the federal government produces Recovery Strategies and Action Plans for listed species, it also needs to respect provinces’ jurisdiction to manage species at risk. However, as noted above, four Canadian provinces do not have any stand-alone endangered species legislation. In cases where provincial governments do not take appropriate and timely action, section 80 is a powerful accountability mechanism that allows the federal Minister to intervene and prevent further decline and habitat degradation.
It is also important to note that while section 80 gives the federal government the legislative discretion to intervene with emergency orders to protect species and prohibit specific activities that will further harm the species and its habitat, it does not guarantee the implementation of any actions to recover the species. Section 80 does not, in itself, carry out a species Recovery Strategy or Action Plan and it does not guarantee the respective provincial government will develop long-term recovery strategies. This is the important point about the “emergency” nature of an emergency order; it is a reactive measure and does not immediately guarantee proactive measures.
However, despite numerous examples of delayed action on species at risk, the federal government has only used emergency orders twice since SARA came into effect in 2003.
A Chorus of Two
SARA includes section 80 to ensure that there is a mechanism to protect imperiled species and their habitats in cases (and there are many) where provincial governments fail to act. Section 80 gives the federal government the discretionary power to intervene, thereby ensuring that our multilateral species at risk framework is robust, effective, and consistently applicable across the country. Despite this unique and powerful provision, and in spite of numerous species continuing to decline in Canada since listing, the federal government has only issued emergency orders under section 80 for two species: the greater sage grouse (2013) and the western chorus frog (2016).
Shaun Fluker, an Associate Professor of Law at he University of Calgary, has provided thorough background and analysis on practically every aspect of the stories around SARA and the use of section 80 to protect the sage grouse and chorus frog. I humbly defer to his expertise on these issues and encourage you to read his materials.
In 2011, a coalition of conservation groups in Alberta filed legal proceedings to request that the federal Minister of Environment Canada issue an emergency order to protect the greater sage grouse. The greater sage grouse is listed as endangered under SARA and the Recovery Strategy documented that there were only an estimated 100 individuals remaining on only 7% of its historic range. Importantly, the original Recovery Strategy for the greater sage grouse, completed in 2008, completely failed to identify any critical habitat, a legal requirement under SARA. So, in 2011, conservationists were successful in their efforts and the federal government issued the Emergency Order for the Protection of the Greater Sage Grouse in Alberta and Saskatchewan. This was the first time that an emergency order was made under section 80 of SARA, after the federal Minister and the federal court decided not to issue an order to protect woodland caribou earlier that same year (more on this below). Among other provisions, the emergency order included prohibitions on actions such as killing or removing sage brush plants or installing fences and roads in the grouse’s critical habitat.
In many ways, the case of the western chorus frog encapsulates the SARA story since it was enacted back in 2003: politics over science; missed statutory deadlines; and inadequate funding.Shaun Fluker, Associate Professor, University of Calgary
The second time the federal government made an emergency order was to protect a 2.5 cm amphibian in Quebec. In 2013, Nature Quebec, a conservation organization in Quebec, requested that the federal Environment Minister make an emergency order to protect the western chorus frog from increased habitat loss in the La Prairie region of Quebec. When the Minister refused to make an order, Nature Quebec filed court proceedings to request that the Minister be forced to issue the order. The western chorus frog is listed as threated under SARA and the Recovery Strategy documented a population decline of 37% in Quebec. The frog’s wetland habitat is often targeted for urban development and the species has lost an estimated 90% of its historic range. After two Conservative Ministers refused to make an emergency order to protect the species, in 2016, the new Liberal Minister issued the Emergency Order for the Protection of the Western Chorus Frog to protect wetland habitat that would have been destroyed from a housing development. The emergency order specifically focused on prohibiting activities associated with altering wetland hydrology and water flow dynamics, removing soil or vegetation, or operating motor vehicles in the habitat. What was particularly unique about this emergency order was that the activities prohibited by the order also applied to privately owned lands.
No Emergency Order for Caribou
To back up a bit, in 2010, a coalition of Indigenous communities and conservationists requested that then Environment Minister Peter Kent make an emergency order to protect declining woodland caribou in Alberta. Minister Kent declined to issue an order under section 80, saying that caribou did not face imminent threat in Alberta. This was puzzling given that COSEWIC’s 2014 assessment of woodland caribou in Alberta found that “for 37 of 51 subpopulations where trend data are available, 81% are in decline”.
The coalition then filed legal proceedings to request that a federal court order the Minister to make an emergency order. In his review of the filing, Justice Crampton, who ruled on the case, acknowledged the Alberta government’s failure to act on caribou recovery but did not order the Minister to intervene. In his ruling, Justice Crampton stated his opinion that “it is not immediately apparent how, given the foregoing facts, the Minister reasonably could have concluded that there are no imminent threats to the national recovery of boreal caribou”.
Ultimately, while Justice Crampton rejected the applicants’ request for an order to force the Minister to intervene under section 80, he also did the legal equivalent of sending the Minister up to his room without dinner to think about his behaviour. Justice Crampton sent the decision back to the Minister to reconsider making an emergency order. And like children throwing a tantrum when they are caught misbehaving, the Minister doubled down and again refused to issue an emergency order to protect caribou in Alberta. Meanwhile, caribou continued to decline and lose habitat.
In his commentary on the 2011 court decision regarding section 80 and caribou in Alberta, First Nation treaty obligations should inform the interpretation of discretionary powers under the Species at Risk Act, Canadian legal scholar Nigel Bankes highlights a point made by Justice Crampton, who issued the decision on the case.
Caribou were listed as threated under SARA in 2003, a status that required the Minister of Environment Canada to develop a Recovery Strategy within two years. The federal government did not complete the Recovery Strategy until 2012. Bankes comments that unfortunately, “and for reasons that are not well articulated, [Justice Crampton] cannot quite bring himself to issue a declaration to the effect that the Minister’s delay in issuing a recovery strategy is unlawful”.
It is unclear why the Minister refused to make an emergency order to protect caribou even in the face of observed and ongoing rapid declines in the population. Keep in mind that this case took place before the sage grouse case, so at the time of the caribou decisions, there was not a single precedent that could offer any instructive example of the use of emergency orders under SARA. However, the caribou decision did emerge as instructive in another regard. Nigel Bankes goes on to comment on another important point in Justice Crampton’s decision that sheds some light on the complexity of the use of section 80 related to Indigenous rights in Canada.
Section 80 and Indigenous Rights
The Canadian government is required to consider the impacts of natural resource management on the rights of Indigenous peoples in Canada. In violating SARA and failing to produce a Recovery Strategy for caribou, there was also a question as to whether the Alberta government, and Minister Kent in deciding not to issue an emergency order, had upheld their responsibilities to Indigenous rights (a legal concept known in Canada as the “honour of the Crown”). Minister Kent expressed his opinion that the government’s obligations to Indigenous peoples was “not relevant” in considering whether to pursue action under section 80 of SARA. Justice Crampton disagreed.
Bankes writes, “Justice Crampton went on to rule that it was a clear error of law for the Minister to have concluded that the Treaty-based hunting rights of the First Nation petitioners were irrelevant to his section 80 decision. Accordingly, he sent the matter back to the Minister to have him re-consider his decision”. In his court decision, Justice Crampton states that Minister Kent should not restrict his assessment of impacts on Indigenous peoples to only active decisions by the government. According to Justice Crampton, “such an approach would present an impoverished view of the honour of the Crown”. Justice Crampton states that the government must also consider whether the government’s violation of SARA, by failing to develop a Recovery Strategy, is “consistent with the honour of the Crown”.
So, the government’s obligations to uphold Indigenous treaty obligations should also inform the implementation of SARA and species at risk recovery. The use of section 80 is complicated. Canada’s species at risk framework is designed on the premise of cooperation and respect for shared jurisdiction between the federal and provincial governments. While section 80 is an important mechanism under SARA to ensure the provincial governments are accountable to their legal responsibilities to species at risk, its use presents additional social-political challenges. However, the use of emergency orders under section 80 might also be an important tool that the federal government should use specifically to uphold its Constitutional obligations to Indigenous peoples. It is clear that emergency orders need to be considered more holistically than simply a narrowly defined legal decision.
There are currently 417 species of plants and animals listed as threatened or endangered in Canada, including 193 vertebrate species listed over the previous 16 years.
Shaun Fluker comments that the case of the western chorus frog encapsulates the story of the Species At Risk Act. In a similar sense, section 80 of SARA stands as somewhat of an allegorical representation of the false starts, cold feet, toothless barks, and failings of the wider apparatus of species at risk management across government jurisdictions in Canada.
Examining the story of SARA through the various cases in which section 80 has played a role, we see many of the important thematic issues with the Canadian species at risk framework. Governments have repeatedly missed timelines; Ministers have refused to use section 80 to protect species even when clearly warranted; federal courts have ruled on its use; conservation and Indigenous groups have coalesced around it; it has underscored the need to examine the intersection of Indigenous rights and species at risk; and it has quite likely saved two species from extirpation, yet both still remain at risk in Canada.
While section 80 is a singular, perhaps obscure component of the Canadian species at risk framework, it helps clarify what might appear as federal inaction on species recovery and conservation. The public might have a cursory awareness that the federal government assesses and lists species under a federal Species At Risk Act, but it can be confusing when the federal government does not appear to take action on species listed under SARA. Further, it is too commonly the case that the provinces fail to take effective action on species recovery and conservation.
Understanding the purpose of section 80 creates opportunities for conservationists to pressure governments to take effective action to protect declining species. Generally, we need to hold provincial governments accountable to their responsibilities under SARA. However, there are times when conservationists can pressure the federal government to intervene in species and habitat protection through the use of a section 80 emergency order. It is key that we collectively learn from past cases and successes to make progress on species conservation.