Written by: Florence Daviet, National Director, Forest Program
In 2017, CPAWS took the federal government to court regarding Section 63 – a little thought of, and never implemented, provision in the federal Species at Risk Act. The following is a quick review of why we think this lawsuit is important for protecting species in Canada.
Section 63 is part of the “Critical Habitat Protection” section of the act. It states:
If in the opinion of the Minister any portion of the critical habitat of a listed wildlife species remains unprotected 180 days after the recovery strategy or action plan that identified the critical habitat was included in the public registry, the Minister must include in that registry a report on the steps taken to protect the critical habitat. The Minister must continue to report with respect to every subsequent period of 180 days until the portion is protected or is no longer identified as critical habitat. (source)
What is at the heart of our disagreement?
CPAWS and the federal government disagree on the interpretation of this section of the act. CPAWS believes the Minister must identify any critical habitat that remains unprotected on non-federal lands 180 days after it has been identified and start to report on steps taken then and every 180 days until protection is achieved or the habitat is no longer considered critical habitat.
The federal government believes that the Minister must only start reporting 180 days after completing the first critical habitat protection assessment. This assessment can be done at any time after the critical habitat has been identified. At that point, reporting must continue every 180 days until the habitat is protected or no longer considered critical habitat.
To date, critical habitat has been identified for more than 100 species, yet there are no Section 63 reports. For CPAWS, giving the federal government the discretion to simply pick when they will report on a species seems counter to what the Species at Risk Act is trying to achieve and the urgency that faces the species that are listed as threatened or endangered in the act.
How will implementing Section 63 help protect critical habitat?
Section 63 is the “sunlight” provision of the Species at Risk Act focused on critical habitat protection. Implementing this provision 180 days after critical habitat is identified is key in that it will immediately increase the transparency around, and the focus on, areas where habitat remains unprotected. It will also highlight where there are actions being taken to protect habitat and where there are not. There are two reasons why transparency is key for critical habitat protection in Canada:
Successful Collaboration
In Canada, protecting endangered species is a shared responsibility between the provinces/territories and the federal government. In practice however, achieving species protection requires collaboration far beyond these governments. Indigenous governments, industry, farmers, land owners, non-governmental organizations, and others all have an important role to play. Today, it is very difficult to know whether any portion of critical habitat is protected or not. For these actors to participate in the process of protecting critical habitat, they not only need to know where the critical habitat is, but its protection status and what steps are being taken so that they can provide support and solutions.
Section 63 reports early in the recovery and protection process can provide this information to all interested actors and thereby support collaborative efforts to recover species at risk.
Accountability
Provinces and territories are primarily responsible for protecting species and critical habitat on their own lands, while the federal government is primarily responsible for protecting critical habitat on areas under federal jurisdiction.
However, the federal government can encourage provinces and territories to protect critical habitat on non-federal lands by providing funding. They can also sign conservation agreements with these governments, as well as other actors who want to contribute to protecting habitat. As a final recourse, if critical habitat is not effectively protected, the federal minister can recommend that the federal government impose a “safety net” tool to protect critical habitat for 5 years, while the province or territory puts appropriate protections in place.
Providing section 63 reports earlier on in the recovery process would allow for all the actors involved to hold each other to account for what is being done to protect critical habitat. For the federal government, these reports will help them assess which tools might be the most appropriate to help provinces and territories move forward with protection activities. Over time, it may also provide them with the evidence needed to demonstrate that certain actors are not moving forward in good faith.
Section 63 reports will also allow all Canadians to know exactly who is taking steps to protect critical habitat and who is not. This also fits in with the broader mandate of the Species at Risk Act to facilitate public access to information relating to the protection of species at risk.
Why does focusing on protecting habitat matter?
According to the new WWF Living Planet Report (2017), half of the wildlife species (451 of 903) being monitored declined by 83% between 1970 and 2014. The Report notes that habitat loss continues to be the greatest threat to species in Canada.
Despite the continued recognition that habitat loss is driving the decline of wildlife species in Canada, several recent reports have pointed out that efforts to protect the critical habitat of threatened and endangered species continue to lag.
By implementing Section 63 180 days after critical habitat is identified, we can ensure that attention is being paid to this important step in species protection in a timely manner.
CPAWS work on Species at Risk
CPAWS is working across Canada with Crown and Indigenous governments, industry, academics, and communities to protect habitat needed by for some of our most iconic and wide-ranging species at risk, such as Boreal Woodland Caribou, Grizzly Bears, and Plains Bison. These species are a vital part of our country and CPAWS is working together with partners to conserve the wild spaces they need to thrive.