Canadian governments are sitting by and watching as endangered species disappear, in what one environmental lawyer calls a “slow moving catastrophe.”
“This is 13 years after this species was listed as threatened. There’s been 13 years of decline of caribou, 13 years of deterioration of their habitat,” Ecojustice lawyer Sean Nixon told DeSmog Canada.
Caribou were first listed as threatened under Canada’s Species At Risk Act in 2004. It took eight years and litigation to get the federal government to come up with a recovery strategy, as required under law. That federal strategy ended up pushing the responsibility back to the provinces.
It’s been a similar story with British Columbia’s endangered orca. The northern and southern residents were listed as threatened and endangered respectively in 2003. It took the federal government five years to come up with a recovery strategy.
That recovery strategy identified critical habitat, which should have been protected within 180 days by law. But the government didn’t take action, so Ecojustice took the feds to court, where they won in 2012.
The problem is that even since the court ruling forced the federal government to issue a protection order, things haven’t improved.
“They seem to have felt that they have carte blanche to continue to destroy the habitat of an endangered species,” Nixon said.
How the U.S. manages endangered species
Protests from industry and the provinces and a lack of enforcement from the federal government has created gridlock. But Canada need look no further than the U.S. to see that endangered species can be managed more effectively.
“The U.S. has run a successful industrial economy for 40 years under the Endangered Species Act,” Nixon said. “For some reason, we have this notion in Canada that that would never work here, that it’d just shut down industry if we paid attention to the needs of at-risk species. We need only look south of the border to see that’s not true.”
The Endangered Species Act became law in the U.S. in 1973, 31 years before Canada enacted similar legislation.
“I think the biggest lesson from the U.S. is that it takes some time to turn species around, it takes decades, but it does happen eventually if you protect and restore habitat,” Nixon said.
Catherine Kilduff, a senior attorney with the Centre for Biological Diversity in the U.S., said the U.S. law has teeth.
“The critical habitat provisions in the U.S. mean something. There are U.S. Supreme Court cases that say how important they are and how they really do determine how federal actions can proceed,” Kilduff told DeSmog Canada.
University of Montana biologist Erin Sexton told DeSmog Canada the key difference between Canada and the U.S. is that when critical habitat is designated in the U.S., industrial activity is essentially off the table.
In national forests in the transboundary Flathead area of northern Montana, where Sexton works, “we haven’t built a new road in decades” due to the protection of grizzly bear habitat.
All proposed projects have to pass an environmental impact assessment that considers cumulative impacts on the landscape, not just the incremental impacts of that particular project.
“We have a requirement that we look at past, present and future impacts,” says Sexton. (Canada is currently reviewing its environmental assessment process, including how it evaluates cumulative impacts.)
When asked whether changes under Trump could make the United States more like Canada in its species protection, Sexton paused.
“My initial reaction is, ‘wow, no I don’t think it can get that bad,’ ” she said.
The Trump administration just halted an oil and gas lease sale near eastern Idaho’s Grays Lake National Wildlife Refuge after groups filed formal protests because fracking and drilling would threaten the greater sage grouse and violate federal conservation plans for the bird.
A brief history of Canada’s Species At Risk Act
In Canada, federal legislation to protect endangered species didn’t come into force until 2004.
Further complicating matters, under Canada’s Species At Risk Act, the federal government only takes responsibility for aquatic species and species on federal lands, while the provinces are given primary responsibility over everything else.
“There’s a much stronger assertion of federal authority in the United States,” Nixon said. “The federal government is responsible for all species.”
The problem with responsibility for endangered species falling to the provinces is that the provinces are also responsible for resource development.
“The provinces are all addicted to the short-term cash flow from the liquidation of raw resources,” Nixon said. “The federal government is removed from that resource fray, so there’s less influence on the federal government from specific companies or industries.”
The good news is the federal government does have the constitutional authority to step in and protect species at risk. The bad news is, it hasn’t exercised it yet.
“They’ve been sitting there idly while the provinces have proved they’re unwilling to protect Canada’s wildlife,” Nixon said.
Orcas vs. oil tankers
To add insult to injury, not only is Canada failing to protect the habitat of endangered species — but in many instances, it is actually making matters worse.
In B.C., the Kinder Morgan Trans Mountain pipeline will create a seven-fold increase in the number of oil tankers travelling through critical habitat for endangered orca. There are just 76 southern resident orcas remaining.
In October, environmental groups took the federal government to court over its decision to grant permits for the oil pipeline.
“We have repeatedly said that Cabinet based its approval of this project on an unlawful National Energy Board report that failed to apply the Species at Risk Act and mitigate impacts on Southern Resident killer whales,” said Dyna Tuytel, a lawyer for Ecojustice.
“This chain of flawed decision-making almost guarantees the extinction of this already endangered population.”
The National Energy Board excluded adverse impacts caused by tankers from its environmental assessment, according to Karen Wristen, executive director of Living Oceans Society.
“As a result, no environmental assessment of the impacts of increased tanker traffic was undertaken,” Wristen said.
Meanwhile in Alberta, the province has been granting tenures to oil and gas companies in critical caribou habitat.
Woodland caribou can handle disturbance of about 35 per cent of their habitat. But in some of the Alberta ranges, more than 90 per cent of the caribou’s habitat has been disturbed by forestry, seismic lines, well pads, pipeline rights-of-way and oilsands projects.
Some herds are down to fewer than 100 animals.
“This is an example where the federal government and provincial government seems to be sitting and watching as a species disappears,” Nixon said.
“We could see woodland caribou disappear from Canada within a human generation, within the next 20 years, just because nobody was willing to step up.”
Ecojustice recently filed a petition with the federal environment minister in relation to several herds in northeastern Alberta, on behalf of First Nations and environmental groups.
“The ball is in the federal government’s court now. Are they willing to let the provinces do nothing?”
Provinces lack endangered species legislation
Part of the problem is that many of Canada’s provinces don’t have their own endangered species legislation.
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 B.C., the NDP government has promised to introduce endangered species legislation this term. In late November, B.C. also announced it had developed a draft agreement with the federal government on what steps will be taken over the next five years to protect the province’s southern mountain caribou — but critics are already warning the plan doesn’t go far enough.
In a letter published in the journal Science in late 2017, researchers Mark Hebblewhite and Daniel Fortin accused governments at all levels of dragging their heels for over a decade while most of Canada’s caribou populations dwindled — largely at the hands of oil and gas and forestry companies.
“If you wait long enough before doing anything, the habitat keeps getting worse, the population keeps declining,” says Fortin.
“The situation becomes so bad that there’s nothing you can do.”
— With files from Jimmy Thomson