Environment Committee on March 1st, 2011

[The Chair, Conservative, James Bezan]

We're in public session now for our study on species at risk, pursuant to Standing Order 108(2), section 129 of the act. This goes back to a motion that we passed a year ago—we were reconstituted to take on this report—but this actually goes back to 2009, when we started doing our statutory review.

We welcome to the table, from the Department of the Environment, John Moffet, director general of legislative and regulatory affairs, and Virginia Poter, director general of the Canadian Wildlife Service. From Parks Canada Agency we have Mike Wong, who is the executive director of the ecological integrity branch. From the Department of Fisheries and Oceans we have Kevin Stringer, who is the assistant deputy minister, program policy.

I welcome all government officials who are here.

I understand, Ms. Poter, you're going to kick us off, so I'll turn it over to you for your opening comments for ten minutes.

[Virginia Poter, Director General, Canadian Wildlife Service, Department of the Environment]

Thank you, Mr. Chair.

Good morning. John Moffet and I are pleased to be here representing Environment Canada. And colleagues, as you noted, are here with us from Fisheries and Oceans Canada and Parks Canada Agency.

I will provide some opening remarks, which will include a high-level overview and status report of our implementation of the act and some observations from the review. My colleagues and I will then do our best to answer your questions.

SARA is premised on the view that it is in our interest to protect species at risk. Canada's biodiversity is essential to the health and well-being of Canadians and our economy. For example, 13.6% of Canada's GDP depends on healthy ecosystems through forests, agriculture, and the oceans.

The Species at Risk Act explicitly recognizes that the responsibility for conservation of wildlife in Canada is a shared responsibility. Under the accord for the protection of species at risk, the federal government, provinces, and territories committed to use their own laws and regulations to protect species at risk. For the federal government this is applied to migratory birds, aquatic species, and species on federal lands. SARA is the key legislation the federal government uses to implement the accord.

SARA was put into place to prevent wildlife species from becoming extinct or being extirpated—which means no longer existing in the wild in Canada—and to support their recovery. It addresses all types of wildlife in Canada, ranging from large mammals to fish to insects to plants. As the committee has studied in some detail, the act sets out required processes for assessment, protection, and recovery of species at risk. The act also provides for monitoring and evaluation to determine the effectiveness of protection and recovery measures and to make adjustments as necessary. The ultimate goal is to delist species that have recovered.

As we described in our previous appearances, when SARA became law, 233 species were immediately listed on schedule 1 of the act. As a result, under the timelines prescribed in the act, recovery strategies were required by June 2007 for 190 species that were listed as threatened, endangered, or extirpated. Similarly, management plans were required by June 2008 for the remaining 43 species listed as “special concern”.

Although this immediate set of obligations presented a significant challenge, we are making progress on this initial backlog. As of February 4, 2011, 486 species were listed under the act. Recovery strategies have now been completed for 144 species, and strategies for nearly 190 additional species are under way. With systems, staff, and policies in place, the pace is picking up.

My colleagues and I would be happy to answer your questions about the implementation of the act to date. And I would like to now make some comments regarding the review and what we've heard so far from review of the witnesses' testimony.

We have followed very closely what the witnesses have said to this committee. Apart from detailed issues of concern that relate to the particular circumstances of individual stakeholders, we believe some cross-cutting messages emerged from the review.

None of the witnesses questioned the basic purpose of the act or the importance of protecting and recovering species at risk as an important element of conserving healthy ecosystems in Canada. There are, however, understandable and widely shared concerns about delays in getting to effective on-the-ground action.

You heard about the challenges associated with the prescriptive nature of the act and how it can be difficult to reconcile its detailed, step-by-step requirements and timelines with obligations to consult on most key decisions and with the overarching need to foster collaborative partnerships on the ground.

Industry representatives told you that they need predictable and effective ways to be able to comply with the act. And most witnesses emphasized that efforts under SARA need to work in harmony with other conservation measures, many of which require collaborative partnerships rather than the imposition of an inflexible, one-size-fits-all approach.

In addition to these key challenges, certain overarching themes may be drawn from what the committee heard.

First, it seems clear that witnesses want the goal of action under SARA to be timely and effective protection and recovery of species at risk.

Second, as stated earlier, the responsibility for conservation of wildlife in Canada is shared, and effective conservation requires cooperative actions involving all levels of governments, aboriginal peoples, and other stakeholders, including landowners and resource users. People expect action to protect species under SARA, to contribute to and align with this overall suite of public and private conservation efforts.

Third, a number of witnesses have talked about moving forward to more ecosystem-based approaches, or grouping species to support effective conservation actions, for example, by addressing a common threat. This would help facilitate an integrated approach to working with provinces, territories, aboriginal peoples and others. Many are already involved in managing activities from a landscape, watershed, or ecosystem-based approach.

Finally, those who participated in the committee's review expect us to look for ways to focus our efforts on the actions that would produce the best conservation outcomes on the ground, encourage the development of proactive partnerships and facilitate voluntary action to protect and recover species at risk, conserve species that are not at risk, and support broader conservation planning and protection.

In closing, I would like to assure you we take these concerns and suggested strategic directions seriously. We look forward to the advice from your report.

Thank you.

[The Chair, Conservative, James Bezan]

Thank you, Ms. Poter.

We'll go with our normal rounds of questioning.

Mr. Kennedy, you can kick us off with seven minutes.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Thank you, Mr. Chair.

Thank you, Ms. Poter, for that presentation.

I'm not going to speak for the whole committee—certainly not the yeomen folks who have been here for a period of time and perhaps have met you before, and others—but I do think there is a concern about how many of the problems that are generally accepted about SARA have to do with implementation and how many have to do with design. When you make remarks about the pace picking up, I think it would be helpful for me, and maybe some other members of the committee, to know what factors, what variables, help to deliver.

I mean, I think these numbers do have some significance: 486 listed, 144 strategies. But there is a strong sense that at the end of the SARA process, which people are familiar with here, there is grinding that takes place.

You did mention factors, but if it's possible to see it as redoubled efforts under way, that there are things happening, I'm interested in what makes that difference. Quite apart from what we do with the act operationally, what makes a difference? I would be interested to know that.

There are two things in particular. Has there been any change in not just the availability of resources, but the applications and the way they're done?

Secondly, we heard from many witnesses about regulations or their absence, or policies, definitions. When you talk about the need for partnerships in shared jurisdiction, surely it must be important to negotiate some of those things. Otherwise, you don't really have partnerships. And I think the act allows that flexibility.

The absence of the translation of the act in clear policies, definitions, has been identified by numerous stakeholders—things that people can then be on the same page with in terms of expectations. Without being leading, the first question I would like you to answer is about the pace and the factors behind it. If it's not resources and regulations, I'd like you to answer those separately.

Thank you.

[Virginia Poter]

Thank you for that question.

First, to be able to deliver on the act you need the people in place who understand what is required. Certainly Environment Canada did have a time when we were staffing, and that does take some time in the public service process. So we now have staff in place to be able to get on and do the work.

You also need guidance that is available to staff to be able to execute in a consistent manner that applies the act in a consistent manner, whether you are dealing with a plant, a fish, or whatever. So we have been developing a policy suite that was published for public comment back in 2009. Since then we have been in the process of revising the policies. We're about ready to publish the policies and we received some direction from the courts. We wanted to review the policies to ensure we were completely consistent with the direction that came as a result of judicial decisions.

As well, we've also been working on developing guidance material for our staff. For example, on recovery strategies, we have revised and revamped the templates and the specific guidance for our staff so the recovery strategies that are produced are at the right level. As well, we've been developing the more streamlined approaches to consultation that are required, given that we want to engage with the parties that are affected by any recovery planning documents that will come forward.

So we have put in place a lot of what I would call the machinery to be able to execute quickly, consistently, and effectively.

Then we can also point to the fact that we are now picking up the pace and developing recovery strategies. In the last ten months we have produced recovery strategies for 35 species, which is about a quarter of the total of the recovery strategies available. So you can see that all of a sudden we've put the foundation and the machinery in place. We have the people able to execute. So now we're starting to see progress.

I don't know if my colleagues want to comment.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

If there are any other perspectives on that in terms of the resources and regulations....

[Kevin Stringer, Assistant Deputy Minister, Program Policy, Department of Fisheries and Oceans]

I would be happy to comment. I think a number of things have been a challenge.

I guess I would point to how we developed recovery strategies, a big body of the work. Initially a lot of the work was deciding the process around whether to list or not. Then the next big body of work is around recovery strategies.

We've had varying success with that. It is partly that as you identify threats to species, to critical habitat, and identify potential strategies, you need stakeholders and other jurisdictions, environmental groups, conservation groups, and industry at the table. It's a balance between whether you want to move these things quickly or whether you want to be as inclusive as we often feel we need to be able to be.

I think we're still working on that. Then there's the matter of consistency. If there's supposed to be some consistency that comes out of these recovery strategies, you need some processes to be able to do that.

I would also add that as Virginia said, those policies are now available for comment and have been on the website for quite a while, but we've also been providing guidance internally for permitting guidelines and those types of things. So piece by piece we are putting those definitions, policies, and guidelines in place both for ourselves and for stakeholders.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Do any of the departments affected have a perspective on what the net effect has been? In other words, has the acknowledged slowness in certain things coming together caused problems? Do we know whether there has been risk to species because we didn't get things together in terms of the beginning phase?

There's been a lot of talk about potential economic harm. Do we have any idea whether the processes have caused economic harm? Is there any way of picking that up in the sense of things? Obviously we're trying to use as much of your experience as possible to improve the circumstances going forward. I think those are some of the baseline considerations. Are we protecting species? Are these start-up delays, or is something more added? We don't want to leave the "nots" huge to deal with.

Secondly, what have we learned about those interactions that we need to deal with? Particularly, do any of the departments have studies or analysis that would help us on those factors? What do we know about the experience of the act to date that should inform any revisions? This is the chance to improve your lives here, but more importantly the purposes of the act to deliver something that can improve outcomes.

[The Chair, Conservative, James Bezan]

I would ask that responses be very short and to the point.

[Virginia Poter]

I'll take a stab at that.

At Environment Canada--or at the other two departments--we don't currently have a study that would definitively answer that question. However, an evaluation of SARA is under way as we speak. We won't have the results of it for a number of months.

The only other point I would flag is that whenever a listing decision is put before the Governor in Council, we must complete a regulatory impact analysis statement as part of the cabinet directive on streamlining regulations. In that, we need to flag socio-economic considerations for any listing decision.

[The Chair, Conservative, James Bezan]

We'll move on.

The floor is yours, Mr. Bigras. You have seven minutes.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you very much, Mr. Chair.

I want to start by thanking the witnesses for being here. I get the sense that what we are hearing this morning is somewhat similar to what we heard a few months ago, in committee. I will still take the time to ask some questions, though.

I want to pick up on a debate we had in committee on the use of scientific data versus socio-economic factors in decision-making at the various stages of the process set out in the Species at Risk Act. One camp says we should give scientific data more weight, and the other camp says we should give priority to economic considerations.

What I want to know now is whether you have a position on that. Do you have a method in place? What do you base your assessment on when you make a decision?

I get the sense that the situation has always been unclear and that you do not have an established approach. Here and now, can you tell us whether different factors carry a certain weight in the decision-making process? When do socio-economic factors enter into the implementation of SARA?

[Virginia Poter]

I'll start, but I'm sure my colleagues will jump in.

SARA is very clear on the types of information that can be taken into account. In determining recovery objectives, and so on, and the critical habitat in some cases required to achieve those objectives, it is strictly based on the biological needs of that particular species.

We can consider socio-economic factors in two portions of the act. First is in the listing decision, as was mentioned, and any regulatory change must consider socio-economic factors. The decision whether or not to list takes into account socio-economic factors. The decision on the risk level--threatened, endangered, special concern, or so on--rests on the assessment by the committee on the status of endangered species in Canada. The biological portion of the listing decision is what degree of risk a particular species is at. Then GIC makes the decision whether or not to list, based on the biology, socio-economic factors, etc.

The only other place in the act where we may consider socio-economic factors is in action planning. There is a list of specific actions to be taken to help recover a species at risk, and you can take the most cost-effective approaches to implement cost savings.

A third area where at times socio-economic factors can come into play is when the amount of habitat available to achieve recovery for a species is more than what is actually required. In those circumstances, socio-economic factors can come into play to help determine critical habitat. But for the vast majority of cases, critical habitat is strictly a biological definition.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Stringer, do you have anything to add?

[Kevin Stringer]

I can jump in.

I agree with everything that's been said.

There is no formula. As Virginia says, it really is mostly at the listing time, and that's sometimes why the listing decision takes a while. There are very significant consequences to going ahead and recommending listing--or listing--so socio-economic considerations are an important factor. It is a science-based process. From COSEWIC right through the entire process it's science-based. Socio-economic considerations do come up, particularly at listing, and as Virginia says, at the other point. But there actually is no formula to say if there's this much socio-economic consideration and this much science evidence.... It is, at the end, a judgment call. But it does speak to the importance of taking it into account at that point.

One final point is that socio-economic considerations are not just the immediate costs. There are also the long-term benefits of listing. So if you were to list, then down the road there would be this socio-economic benefit to Canada. And then there's the matter of trying to figure out the cost of the social benefit and the economic benefit of habitat and those types of things.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Chair, I have another question.

Correct me if I am wrong, but in recent years, in other words, from 2008 to 2009, the Federal Court ruled on certain aspects of SARA, including the designation of a critical habitat. How did what you took away from the Federal Court's various decisions shape your policies going forward?

You said this morning that you are in the development phase and that something will be forthcoming in a few months. I appreciate that something will be forthcoming in a few months, we have been hearing that for a while now. That said, since 2008-2009, the Federal Court has handed down decisions that have clarified certain elements, including the protection statement. It ruled as follows:

A protection statement must not rely on policies, guidelines or other such instruments.

The federal court seems to be saying that you must move beyond guidelines towards a statutory instrument.

How did what you learned from the 2008 and 2009 decisions shape your public policies on protecting species at risk?

[Mike Wong, Executive Director, Ecological Integrity Branch, Parks Canada Agency]

Thank you for your question.

I would probably use the sage grouse example that the government faced with respect to the decision from the Federal Court. When we produced the first draft recovery strategy for sage grouse, we learned from the input of the scientific community, but we also learned from the interpretation of the act. The decision from the Federal Court placed in front of us some clarity with respect to that interpretation.

Since the court decision, Parks Canada replaced the critical habitat section for this particular species, back in October 2009. Now the critical habitat for the sage grouse is protected under SARA, section 58.2, within Grasslands National Park, where approximately 50% of the Canadian population of sage grouse reside. And we'll continue to use our scientific research to determine how best to help this species recover and to continue the implementation of this recovery strategy.

[The Chair, Conservative, James Bezan]

Thank you.

Ms. Duncan, you have the floor.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

That's most interesting.

There's a lot of material we're trying to go through on SARA. We heard a lot of very useful testimony, some of which agrees and some of which disagrees. It looks as though quite a series of reviews has been going on in the department raising the same kind of issues that were raised before us. I guess what we're looking for is what further action has been taken to respond to those. One of them has been the socio-economic issue that has been raised over and over.

A lot of people raise the concern that there still aren't the policy instruments under the act. What they are looking for, I think, are the regulations. I'd be curious to know what direction you're going in to actually solidify that. I would concur with the comments by Mr. Bigras and the decision of the court that there is a tendency within agencies to get away from the legislation and start inventing through policy documents. It's important to keep referring back to what the law has actually prescribed.

An issue that's faced in all federal environmental legislation is the federal-provincial issue. I notice there is a national framework and the department has attempted to enter into federal-provincial agreements, but there don't seem to be very many of those.

Can you tell me why there's no agreement with Alberta and what the barriers might be there?

[Virginia Poter]

I agree there are not a lot of bilateral agreements under the Species At Risk Act, as was envisioned, but we now have four, and the last time we were in front of this committee there were only three. Recently one with Ontario was signed.

The barrier really is about getting through the process. Every time one group or another group decides to change language, it requires yet another legal review, so you can appreciate that you get to a place where you're dotting the i's and crossing the t's. I think Pareto's rule always applies: that last 20% of achieving perfection can take 80% of the time. That's where we are, and we anticipate being able to see the Alberta agreement come to fruition shortly.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

In the absence of those federal-provincial agreements, particularly in Alberta, where I'm from, we have the scenario where, regrettably, first nations and environmental organizations are having to go to court to get action, most notably on the woodland caribou and also on the sage grouse. It's not very reassuring to hear that the answer on the sage grouse is that they're being protected in a national park when in fact I think the issue is Alberta, where Grasslands National Park is not located. I understand there was some action taken on the sage grouse on doing the critical habitat, but the frustration is that there's still no action on the ground to protect the sage grouse in Alberta.

In moving forward, where would you see that friendly federal-provincial relations are prevailing over the federal government actually intervening, for example, in the case of the woodland caribou? I've been informed that the Alberta government will not reveal what the scientific community determined. I'm wondering if that information is provided to the federal government, and in that case, is the federal government considering whether they are going to finally move in and take action on the woodland caribou in the lack of action by the province?

[Virginia Poter]

There were a number of questions in there. Perhaps I'll start with answering the first one and see if that answers some of the points that you raised.

On the caribou, I obviously can't speak too much about the particular court case because it is before the court. However, what I can say, and what was declared openly back in 2009, is that Environment Canada will publish the recovery strategy this summer for the boreal population of woodland caribou as a proposed strategy, obviously, for public comment. We'll obtain feedback and then publish the final strategy later in the year. This has required a lot of additional science work to be able to identify a critical habitat. I think all are aware that is a bit of a challenge. Work is under way in that regard.

In parallel, we have been involved in a process to engage with aboriginal peoples to gather aboriginal traditional knowledge to be able to inform the development of that recovery strategy, as well as a massive consultation effort. We're feeling that progress is well in hand to deliver on that commitment. It does take time to do a species as complicated as the boreal woodland caribou, but it will be out this summer and it will have a clear articulation of population objectives and distribution objectives as well as critical habitat identification and what constitutes destruction.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

That was one of the issues. We heard a lot of really excellent testimony, and in some cases people were frustrated that they hadn't been heard, or that people were being heard over and over, and no action. I would welcome any advice you would provide after the court cases, after working on better specific policy framework, and so forth.

I notice you read into the record exactly the same quote that was put in by Mrs. Cynthia Wright to the effect that the purpose of SARA is to take timely action to protect species, and yet exactly the opposite seems to be occurring. So our struggle is to try to figure out what best advice we can provide to the Government of Canada to break through this logjam. And it's still as clear as mud exactly where the barrier is. It's looking to me as if a lot of it is federal-provincial relationships, and of course in the case of the species we're dealing with in Alberta—the woodland caribou and the sage grouse—it's conventional oil and gas, and it's oil sands. That comes back to socio-economics.

I guess the obvious question is, do you think there will be greater movement for more openness on scientific reviews and in trying to encourage provincial jurisdictions to be making that information available, so there can be a level of confidence and transparency in exactly what criteria are being considered in making these decisions?

[Virginia Poter]

Certainly the federal government cannot compel Alberta to provide information or make information public, but what we can do—and I think that's what we are trying to accomplish through the recovery strategy—is a national strategy that would inform actions on the ground. I think all members here would be aware that the caribou is a provincially or territorially managed species, as opposed to a federal species such as my colleagues in DFO manage, or migratory birds that Environment Canada manages.

So we need to be mindful of the fact that this recovery strategy will help inform actions on the ground. Despite the fact that we do not have a national recovery strategy at the moment, what we do know is actions are occurring across various jurisdictions. Plans are in place. So it's not as if everything is on hold until we get the national recovery strategy in place. Actions are under way trying to address the caribou. But I will flag again the boreal woodland caribou, 39,000 animals spread across I don't know if it's half of Canada, but it certainly is a good third of the country. It is a complicated species to be able to say that this is critical habitat, and if this occurs on the landscape, they have destroyed that critical habitat. That is a challenge: to be able to define in a national context such lightly dispersed species across such a wide distribution.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

So you're suggesting—