‘It just takes too damn long’: How Canada’s law for protecting at-risk species is failing

Fish scientist Eric Taylor wanted to make a difference.

He was more than happy to toil behind the scenes if it helped to save a slew of at-risk Canadian species, be they the iconic Pacific sockeye salmon or the obscure Acadian redfish.

After chairing the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) for the past four years, however, Taylor departs a frustrated, anxious man.

While the federal Species at Risk Act (SARA) has done some good since it took effect in 2002, including increased monitoring, assessments and public awareness, the legislation remains too cumbersome, is riddled with political loopholes and is failing Canada’s most vulnerable species, such as salmon and steelhead populations in B.C.

“A long, winding and never-ending road,” is how Taylor, professor of zoology and director of the Beaty Biodiversity Museum at the University of British Columbia, describes the federal process of formally listing a species.

“It just takes too damn long.”

Action plans with no action

COSEWIC is an independent body of scientists established to impartially assess the status of at-risk plants and animals and make recommendations to the federal government for SARA listings, including endangered, threatened or special concern.

Take a deep breath — the listing process is a cumbersome one.

First, COSEWIC makes a recommendation, then government provides a response statement, followed by a round of public consultation, a recovery-potential assessment, a regulatory impact statement analysis, more public consultation and, ultimately, a ministerial recommendation to cabinet — which then has nine months to list the species, to not list or refer back to COSEWIC for further consideration.

“There are several steps in the process, and all it takes is one of those steps … to hold everything else up,” Taylor laments.

Eric Taylor, professor of zoology and director of the Beaty Biodiversity Museum at the University of British Columbia. Photo: Taylor Roades / The Narwhal

Freshwater fish specimens, stored at the Beaty Biodiversity Museum where Taylor is the curator of fishes. Photo: Taylor Roades / The Narwhal

Once the government finally decides to list a species as endangered, the process of developing a recovery strategy begins, including more public consultation and, finally, an action plan. Of the latter, Taylor snorts: “It’s a stupid term. It’s a plan to do something. Why not just frickin’ do it?”

When all is said and done, he adds: “There’s nothing in there, nothing mandated, that actually says you have to do anything to help the animals and plants on the ground.”

“They have to report on what they’ve done, and that report could say, ‘we haven’t done anything, yet,’ ” Taylor says.

Critical habitat ‘can be destroyed with impunity’

Indeed, lack of protection for critical habitat is another key weak point in the legislation.

Mike Pearson, an independent biologist and expert in endangered freshwater fishes and amphibians in the Fraser Valley, notes that the vast majority of species listed under the Species at Risk Act are threatened primarily by habitat loss.

The act protects the residence of an endangered species — say, a nest or den — and protects against the animal being killed or harassed.

At least, that’s the theory.

The Oregon spotted frog is the rarest amphibian in Canada and listed as endangered; critical habitat has been mapped and the recovery strategy completed.

Yet Pearson watched helplessly the other day as an Agassiz farmer torched a riparian area within the frog’s known breeding site — and in the middle of breeding season, no less.

A scorched riparian area at an Agassiz farm. Photo: Mike Pearson

Since biologists are not permitted to survey for the frogs on the farmer’s private land “there is no way to prove that the frogs/eggs were present at the time” of the fire, Pearson says.

“Essentially, a lot of endangered species’ critical habitat in B.C. can be destroyed with impunity.”

Few convictions for breaking species at risk laws

There’s been fewer than one conviction per year on average under the Species at Risk Act.

In October 2018, a World Wildlife Fund report concluded that at-risk populations continued to decline by an average of 28 per cent since the act took effect in 2002.

There are 451 vertebrate species in Canada experiencing population declines. Between 1970 and 2014 these species showed an average decline of 83 per cent. Source: Living Planet Index, WWF-Canada. Graphic: Carol Linnitt / The Narwhal

There are 64 vertebrate species listed under the federal Species at Risk Act (SARA) as of 2017. Between 1970 and 2002, when the act was adopted, these species showed a decline of 43 per cent. Source: Living Planet Index, WWF-Canada. Graphic: Carol Linnitt / The Narwhal

After the Species at Risk Act (SARA) was introduced in 2002, the 64 species listed in its registry showed a decline of 28 per cent between 2002 and 2014. Source: Living Planet Index, WWF-Canada. Graphic: Carol Linnitt / The Narwhal

In some cases, the federal government moves only after being hauled to court.

Ecojustice, a charity that advances environmental litigation, has achieved a handful of successes, forcing the federal government to act on critical habitat of endangered species, including the greater sage-grouse on the Prairies and both the Nooksack dace and southern resident killer whale in B.C.

Ecojustice lawyer Sean Nixon says one of the big problems is that provinces — not the federal government — own most of the land, yet Ottawa is reluctant to force provinces to protect habitat. “It’s jurisdictional timidity, just not willing to step on a province’s toes.”

Marine fishes less likely to be listed

In 1996, the provinces and the territories and the federal government signed an accord on bringing in legislation to protect endangered species. But 21 years later, Alberta, B.C., Saskatchewan and the Yukon still have no stand-alone legislation (PDF) on endangered species.

In February 2018, a University of Ottawa study concluded that the Species at Risk Act’s failings included inadequate funding, insufficient incentives for stewardship among private landowners and industry, patchy efforts to protect the act on provincial and territorial crown land and private land and a lack of information on effectiveness of recovery actions.

The process of listing has been especially problematic for marine fishes. It’s no exaggeration to say you could fill an aquarium with all the species recommended for listing by COSEWIC that are still awaiting federal protection under the Species at Risk Act.

Ottawa is reluctant to list a species if doing so may have serious economic and social implications.

And when it does act, Taylor says, government tends to choose the least protective option, listing these species as of “special concern” — a category that avoids no-take, no-harm directives.

“It is a well-known fact that things hunted and fished tend not to get listed by the minister.”

As of 2018, he noted, almost 100 per cent of birds recommended by COSEWIC had been listed compared with fewer than 40 per cent for marine fishes — the lowest of 10 categories ranging from birds and mammals to molluscs and mosses.

“If you’re a bird and you get a recommendation for listing by COSEWIC, it’s almost always a slam dunk,” Taylor says.

“If you’re a marine fish, chances are you will not get listed.”

Government action not guaranteed for listed species

Typically, it takes two years for COSEWIC to reach a recommendation, but emergency assessments can be made much faster when there is an imminent and dire threat.

Even in those cases, there is no guarantee of government action.

In January 2018, COSEWIC recommended emergency listing for endangered Chilcotin River and Thompson River steelhead runs after the number of returning adults dipped to just 58 and 177 individuals, respectively.

Steelhead trout spawners over the last three
generations have declined 79 per cent (over 15 years) for the Thompson River unit and 81 per cent (over 18 years) for
the Chilcotin unit. Source: Canada Department of Fisheries and Oceans. Graphic: Carol Linnitt / The Narwhal

Fisheries and Oceans Canada has still not acted.

“They could do it in 24 hours if they wanted to,” Taylor says. “If the political will is there, they can do these things. SARA for salmon and steelhead? It’s a major disappointment. It’s done very little for those animals.”

COSEWIC strictly looks at the species’ conservation status, while Canada must consider the greater implications of a listing.

“Protecting species under the Species at Risk Act, even on an emergency basis, is a regulatory decision with potential impacts on Canadians,” federal fisheries spokeswoman Janine Malikian said in a written statement. “We want to ensure that decisions support sustainability and the best results for Canadians.”

“SARA for salmon and steelhead? It’s a major disappointment. It’s done very little for those animals.”

While a decision has yet to be made on Thompson and Chilcotin steelhead, Malikian said: “Conservation of these steelhead populations remains an extremely high priority and will be a focus of decisions with respect to fisheries management plans for the year ahead.”

Canada, Taylor argues, wrongly believes it can have it all.

“They don’t want to protect them because they have this crazy notion that you can somehow grow the economy and protect the environment at the same time. In most cases, they’re two opposites. You can’t have both at the same time.”

Endangered stocks can migrate upstream with larger healthier mixed-stock runs and become caught in fisheries, including First Nation gillnets in the Fraser River.

“I don’t really care who you are,” Taylor says. “No group has the right to fish something to extinction. Fisheries can be a very important part of reconciliation, but these fish shouldn’t be sacrificed to reconciliation and I don’t think any First Nation would want that.”

More public engagement, stricter timelines needed

Taylor asserts that the federal decision to list a species is influenced by business, jobs and votes. Climate-change related events, such as destructive floods and fires, may help to change public minds and pressure their government to act more quickly, including for marine fishes, he adds.

COSEWIC designated the Cultus Lake sockeye endangered in an emergency listing in 2002. The federal government decided against listing the population, citing “significant socio-economic impacts on sockeye fishers and coastal communities.”

Taylor said the public needs to be more engaged.

“You need millions of people to care about these animals and plants and most people just don’t. It’s sad but it’s true.”

Taylor at the Beaty Biodiversity Museum. Photo: Taylor Roades / The Narwhal

Beaty Biodiversity Museum, University of British Columbia. Photo: Taylor Roades / The Narwhal

Freshwater fish samples, collected in B.C. in the 1950s and stored at the Beaty Biodiversity Museum. Photo: Taylor Roades / The Narwhal

Little has changed on the ground since the Liberals took power in 2015, Taylor argues.

“The bottom line, I’d say that the state of our biodiversity in Canada hasn’t changed much since they’ve come in,” he says, noting it will take more than a single four-year term of office to reverse a “legacy of inaction.”

“You need millions of people to care about these animals and plants and most people just don’t. It’s sad but it’s true.”

The federal government announced several measures Tuesday to help protect depressed chinook stocks on the Fraser River, which prevents sport anglers in southern B.C. from taking chinook until July 14, followed by a daily limit of one per person through December 31. Season limits drop to 10 chinook from 30.

Commercial troll fisheries for chinook are closed until August 20, while First Nations’ food, social and ceremonial fishing is closed until July 15.

In 2017, Richard Cannings, a prominent naturalist and NDP MP for South Okanagan-West Kootenay, introduced a private member’s bill to amend the Species at Risk Act to impose stricter timelines on the government.

The bill would have required that after receiving a COSEWIC recommendation, the Minister of Environment and Climate Change would have one year to recommend to cabinet that the assessment be accepted and the species added to the list, the species not be added or the matter be referred back to COSEWIC for further consideration.

Cabinet would have one month to act or the minister would by order list the species, or provide reasons why not or what action is planned.

Under the current situation the clock only starts ticking on action once the minister informs cabinet of a COSEWIC recommendation — a loophole the former Conservative government of Stephen Harper exploited to ignore COSEWIC.

“It was a very reasonable bill,” Cannings told The Narwhal. “The whole point is to make it a timely, open and transparent process.”

A skeleton of a blue whale, on permanent display at the Beaty Biodiversity Museum. Photo: Taylor Roades / The Narwhal

Cannings withdrew the bill after Environment and Climate Change Minister Catherine McKenna agreed that as a matter of government policy a decision on listing a species would be made within two years — or three years for commercial/hunted species.

“To give them the benefit of the doubt, they’re facing a very big backlog of species that have been ignored during the Conservative years,” Cannings allows.

Taylor’s solution is “very firm time limits” on when the minister must make a decision on recommendations for endangered species listing.

The feds should automatically accept COSEWIC recommendations for listing to avoid the “active harming or killing” of species at risk. Then “take all the time they want” to consider the social and economic consequence of maintaining or tweaking the listing.

“They should automatically go on the list, right away.”

Simply pouring more money into the problem is not the answer, he says.

Federal fisheries Minister Jonathan Wilkinson and B.C. Premier John Horgan announced last month that the two governments will provide a total of $142.8 million toward a five-year program to protect and enhance wild salmon.

“Come on people,” says Taylor, noting the time for concrete action is long overdue.

“They love to throw money at things … but it won’t do any good.”