Summary of Environmental Law in Canada

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17 Conservation of Biological Diversity and Wildlife

 

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17.1 Institutions

 

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Under the Canadian Constitution, both the federal government and provincial governments have jurisdiction regarding aspects of the protection and management of wildlife. Wildlife is primarily a provincial responsibility. However, the federal government, through the Canadian Wildlife Service of Environment Canada, manages migratory birds and other migratory species, as well as threatened species of national significance. The Department of Fisheries and Oceans Canada regulates fish, marine mammals, and ocean species.

Provincial ministries of environment and wildlife have authority over all other wildlife, including endangered species. Usually, provincial Wildlife Acts include the power to designate wildlife areas to preserve important wildlife populations.

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17.2 Protection and Management of Wildlife

 

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The Canada Wildlife Act is the chief federal law pertaining to the protection and management of wildlife. The Act is administered by the Canadian Wildlife Service. The Canada Wildlife Act was amended in 1994 to reflect an increased awareness of the importance of biodiversity. The Act now covers all wild animals, plants, and other organisms. It establishes National Wildlife Areas, in which activities that could harm wildlife are restricted, and requires the development of management plans for all National Wildlife Areas. The federal government also manages wildlife on federal lands, regulates trade in wildlife, and considers impacts on wildlife through the environmental assessment process.

Management of migratory birds and their habitat is conducted pursuant to the 1916 Convention for the Protection of Migratory Birds in Canada and the United States and consequent federal 1994 Migratory Birds Convention Act. The Canadian Wildlife Service establishes migratory bird sanctuaries and regulates hunting of these birds. For example, in 1997, the Migratory Birds Regulations were modified to ban the use of lead shots for hunting most migratory game birds. Too many migratory game birds were dying or suffering from lead poisoning each year. Another initiative related to migratory birds is the Pacific Coast Joint Venture under the North American Waterfowl Management Plan. This is a partnership between government agencies and non-governmental organizations in British Columbia, Washington, Oregon, and California, with the goal of securing more land for prime wildlife migratory habitat. Mexico has also joined the Plan.

Provincial Wildlife statutes regulate hunting and freshwater fishing through licences and permits. Guides and trappers are also usually licenced. Licences and permits are normally required for possession of wildlife, as well as for importing and exporting wildlife. Different actors are involved in wildlife protection and management. For example, wildlife conservation officers have powers to make arrests, wardens have the responsibility to monitor the access to the territory, wildlife conservation assistants must protect wildlife using powers of inspection and seizure. Regulation evolves with knowledge of wildlife ecology. Norms are regularly revised and adjusted to the situation of species and the needs of users. Some special programs have been elaborated to answer specific problems. In some regions where landowners have experienced heavy feed losses due to deer and elk eating cattle feed, special programs have been established. For example, the USE RESPECT Program of Alberta responds to the concerns of farmers and ranchers that wish to grant access to the hunters to their land but want also to ensure their property rights are respected by users. Other innovative management programs have also been established in different provinces. For example, the Fish and Wildlife Trust Fund of Alberta, which is funded through donations and a surcharge above the cost of hunting and fishing licenses, is managed by a non-profit association representing Alberta sportsmen. In Quebec, an exclusive lease has been granted to a corporation on a specific territory to manage snow goose hunting.

Aboriginal peoples in Canada have hunting and fishing rights stemming from treaty rights and aboriginal rights. The Supreme Court of Canada has affirmed these Indian rights, but the exact scope of these rights has not been fully determined.

Threatened and Endangered Species

Both federal and provincial governments have responsibility for threatened and endangered species.

Federal Government

In December 2002, the Federal Parliament adopted the Species at Risk Act, ending a nine-year legislative process to protect species at risk in Canada and their habitats. The new Act comes into effect in 2003 and contains provisions for scientific assessment and species listing, species recovery, protection of critical habitat, compensation, permits, and enforcement. The Species at Risk Act is one element of a three-pronged federal strategy to protect species at risk.

The second element stems from the 1996 Accord for the Protection of Species at Risk in Canada, under which the Government of Canada collaborates with the provinces and territories to develop a common approach for the protection of species at risk in Canada, including complementary legislaton and programs to protect habitats and species. The Accord outlines the commitments for listing threatened species, protecting their habitats and developing recovery plans. The governments have agreed to take a leading role in developing statutes, regulations, policies and companion programs that will identify and protect species that are threatened with extinction and their critical habitats.

Under the Accord, the federal, provincial and territorial governments have agreed to coordinate their efforts by creating the Canadian Endangered Species Conservation Council, composed of the federal ministers of the Environment, Fisheries and Oceans, and Heritage, and the provincial and territorial ministers responsible for wildlife. The Council's mandate is to provide national direction for the protection of species at risk. It has specific responsibilities with respect to the identification and recovery of species at risk and the coordination of action among all parties. It also serves as a forum to settle any dispute that arises in the implementation of the Accord.

The third element in the federal strategy is stewardship, one of the cornerstones of the Canadian government's approach to species protection. Canada's Stewardship Agenda, approved by the federal, provincial and territorial wildlife ministers in 2002, urges Canadians to work together in a landscape approach to protect habitat, contribute to the recovery of species at risk, and conserve Canada's natural heritage. For example, federal government's Habitat Stewardship Program for Species at Risk, which funds projects that support habitat conservation and stewardship. Hundreds of projects involving Aboriginal organizations, landowners, businesses, industries, and non-governmental organizations have been approved over the last three years.

All of these efforts are aimed, among other things, fulfilling Canada's obligations under multilateral treaties on endangered species such as the 1992 Convention on Biological Diversity and the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which seeks to prevent over exploitation of endangered species through international trade. Canada also has international obligations pursuant to the Convention on Wetlands of International Importance Especially as Waterfowl Habitat, a 1971 treaty commonly referred to as the Ramsar Convention.

The federal Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act incorporates the permit requirements of the CITES Convention. The purpose of the new Act is to protect Canadian and foreign wildlife species from illegal trade as well as to protect Canadian ecosystems against the introduction of harmful species.

In cooperation with the provinces, the federal government has also developed a Canadian Biodiversity Strategy, which outlines actions taken by the federal and provincial governments to meet Canada's obligations under the Convention on Biological Diversity. A report on "Conserving Wildlife Diversity", which reports on Canada's progress in implementing its biodiversity strategy, was published in 1998.

Provinces

Only some provinces have Endangered Species Acts (Ontario, New Brunswick, Manitoba, and Quebec). In some cases, wildlife species evaluation lists are maintained under these Acts. These lists include species that are endangered or threatened; those that are sensitive or vulnerable, and those not considered to be at risk but that are managed to meet particular public uses. In the case of infractions to these laws, seizure procedures of biological material by inspectors have been included by different provinces as well as measures to protect incriminating proofs, and sufficient delays for impeachment following the seizure of biological material.

Many provinces have centralized data on wildlife heritage to help in protecting endangered species and habitat. Such data are part of a network including many US states and countries in Central America.

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17.3 Protection and Management of Ocean Fisheries

 

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The federal government has primary responsibility regarding ocean fisheries, including the commercially and culturally important salmon stocks, which extend over considerable distances inland. The federal statutes concerning ocean fisheries are the Fisheries Act and the Coastal Fisheries Protection Act.

The federal Department of Fisheries and Oceans (DFO) grants licences for fishing. The DFO has a surveillance and enforcement program to ensure that fisheries resources are managed and conserved, and that licence holders are complying with the terms of their licence. Sanctions may be imposed, resulting in suspensions, cancellations or non-issuance of fishing licences, and quota reductions. If the DFO finds fisheries violations, a sanction may be imposed to protect the public interest and the interest of all licence holders in the fisheries. While these sanctions have been used only occasionally in the past, a new policy of the DFO gives the Regional Directors General of Fisheries the legal authority to impose licence sanctions more readily. Prosecutions may also result from fisheries violations. Vessels may be seized by the Coast Guard until the prosecution is completed. If a court orders the release of a vessel, the DFO will request security in the amount of the full appraised value of the vessel to be posted.

Salmon management is supported by a number of initiatives, including the Pacific Salmon Treaty signed with the U.S. in 1985, the 1986 Salmon Stock Management Plan, the Salmonid Enhancement Program, the Pacific Stock Assessment Review Committee, the British Columbia Coastal Fisheries Forestry Guidelines, and the Aboriginal Fisheries Strategy. The fundamental priority of the Fish Protection Act of British Columbia, enacted in 1997, is to protect fish by ensuring healthy fish bearing streams and plentiful stocks. Moreover, Quebec and the federal government have a joint program to buy back commercial salmon fishing licenses to favor sport fishing which is more profitable and assures the survival of the species by allowing salmon to run up their rivers of origin to spawn.

Other regimes exist for fisheries in other parts of the ocean under Canadian jurisdiction. The Northwest Atlantic Fisheries Organization (NAFO) regulates fishing off of the Grand Banks area in Newfoundland. Canada's coastal jurisdiction extends over much of the Grand Banks, but there have been recent fishing disputes, particularly with Spanish fishing fleets, over "straddling stocks", fish that migrate between Canadian jurisdiction and the high seas. In June 1994, the Coastal Fisheries Protection Act was amended to give the government of Canada the authority to make regulations regarding conservation on the high seas of fish that straddle the Canadian 200 mile limit.

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17.4 Protection of Habitats and Ecosystems

 

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(See Section 16.3, Protected Areas and Parks; Section 9.7, "Protection of Fresh Water Ecosystems" and Chapter 15,"Private Land Use Planning and Management").

The Canada Wildlife Act now authorizes the protection of marine ecosystems between 12 and 200 nautical miles offshore, pursuant to 1994 amendments.

The federal government has committed itself to protecting 12 per cent of Canada's total territory within a network of protected areas to preserve representative sample of the nation's ecosystems. This goal was arrived at by reference to targets set by the Brundtland Commission and the Third World Congress on National Parks and Protected Areas and the United Nations Environment Program. There is, at the federal level, the Ecological Gifts Initiative which permits corporations and individuals to donate ecologically sensitive lands, to qualified conservation agencies. In return, the donor receives federal income tax credits for the value of the donation.

Most provinces have formally committed themselves to the 12% goal, and have created bodies and adopted strategies to increase the number and size of provincial protected areas. There is a spectrum of legal protection available for land, ranging from national parks to various classes of provincial park, to wildlife management areas, to ecological reserves, and to recreation areas in forests. The degree of protection largely varies according to the degree of human intervention and alteration that are sanctioned within the area.

Moreover, different provincial programs help protect and restore specific natural habitats: for example, the Eastern Habitat Joint Venture of Ontario and Quebec, the Quebec Economic Development Salmon Program, the Ontario Great Lakes Wetlands Conservation Action Plan, etc. Sometimes, unique ecosystems can be preserved through a joint federal-provincial strategy. It is the case for Sable Island in Nova Scotia. A 1998 agreement between the federal and Nova Scotia governments ensures the appropriate long term management of the island based on the objective of conservation.

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2003