Amendments and "Counter-Amendments"
This is a summary of key Amendments Made to C-5 by the Standing Committee on Environment and Sustainable Development (December 3 2001), counter-amendments made by the government and final changes made at the 3rd reading of the Bill (June 11 2002). Senate made no changes to the Bill.
Adapted from summaries prepared by Kate Smallwood, Sierra Legal Defense Fund
PROHIBITING DIRECT HARM TO SPECIES AND RESIDENCES
EXEMPTION PERMITS AND CONSERVATION AGREEMENTS
HABITAT
1. Habitat Protection
Standing committee:
Mandatory but delayed. Section amended to make habitat protection mandatory for listed endangered, threatened and extirpated species on federal land, for aquatic species and for migratory birds; however, protection is delayed until action plan stage, i.e., at least two years after listing.
This change was recommended by a majority of witnesses, including the environmental/industry coalition known as the Species At Risk Working Group (includes the Mining Association of Canada and the Canadian Pulp and Paper Association).
Government amendment:
Reverts back to discretionary habitat protection within federal jurisdiction, except for certain federal protected areas. Reverts to discretionary habitat protection on federal lands, and for aquatic species and MBCA birds. Includes new mandatory protection of critical habitat in national parks, marine protected areas, migratory bird sanctuaries and national wildlife areas BUT only after the critical habitat has been identified in a recovery strategy or action plan and then a further 90 days after a description of that critical habitat has been published in the Canada Gazette. Retains the Committee amendment extending section 58 protection (now discretionary) to extirpated species where a recovery strategy has recommended the reintroduction of the species into the wild in Canada.
Last minute change (3rd reading):
Mandatory Habitat Protection for:
For specified Federal Protected Areas
Federal Lands and Aquatic Species (if Minister determines habitat not otherwise legally protected)
Migratory Birds Under Migratory Birds Convention Act (if the critical habitat is found on federal land; in the exclusive economic zone of Canada; on the continental shelf of Canada; or in a migratory bird sanctuary under the Migratory Birds Convention Act.
This is still a significant step backwards from the Committee's amendment, which made protection of critical habitat for MBCA birds mandatory on all lands in Canada, after identification of critical habitat through an action plan.
Note: protection of critical habitat for migratory birds in all areas other than those outlined above is at the discretion of federal Cabinet upon the recommendation of the competent minister and is limited to habitat to which the Migratory Birds Convention Act applies (the Migratory Birds Convention Act arguably applies only to nests, not broader MBCA bird habitat (although there is legal debate on this)).
Additionally the minister's ability to recommend habitat protection is limited in two main ways:
The recommendation only applies to habitat to which the Migratory Birds Convention Act applies (as noted above); and
The minister is not required to make the recommendation if "any" portion of the MBCA bird's habitat is legally protected. This is arguably a drafting error, given that the rest of section 58 clearly addresses the need to protect all critical habitat, as does the new section 57.1 which clearly states that the purpose of section 58 is to ensure that 180 days after critical habitat is identified in a recovery strategy or action plan, all the critical habitat is protected.
2. Identification of critical habitat
Committee change:
Recovery strategies must identify habitat "to the extent possible" and "based on the best available information, including information provided by COSEWIC." Action plans must also identify habitat "to the extent possible" and "based on the best available information and consistent with the recovery strategy." (The reference to "scientific" was removed to recognize aboriginal and community knowledge).
Government amendment:
No changes.
3. Time limit for protecting critical habitat
Committee change:
Time limit for protecting critical habitat in areas of federal jurisdiction, but not until identification of critical habitat in an action plan.
Government amendment:
Deletes committee amendment:.
As noted above, the government was seeking to revert back to discretionary protection of critical habitat in section 58, with no time limit for protection. (The only exception being the requirement for the competent minister to put a notice in the Canada Gazette within 90 days after a recovery strategy or action plan that identified critical habitat in a national park, marine protected area, migratory bird sanctuary or national wildlife area, has been included in the public registry)
4. Interim habitat protection powers (before completion of recovery plan)
Committee change:
Broad, discretionary "interim measures" power was passed. Bill was amended to allow a competent minister "to take any interim measures that he or she considers necessary to protect the wildlife species" between listing and completion of the recovery strategy.
Government amendment:
Deletes committee amendment. Interim measures power deleted. Unless eligible for an emergency order under s. 80, no interim orders power.
5. strengthening of habitat safety net (i.e., outside core federal jurisdiction)
Committee change:
Mandatory safety net passed, with criteria. Power to make order changed from Governor in Council to Minister. Minister is required to make order enforcing the safety net if he or she is of the opinion that the laws of a province or territory do not effectively protect the species. Minister is also required to give reasons for any determination regarding whether provincial or territorial laws provide effective protection.
Government amendment:
Reverts back to discretionary safety net, with power to make an order changed back to the Governor in Council upon recommendation of the Minister. Does retain the requirement that the Minister must make a recommendation if he or she is of the opinion that the laws of a province or territory do not "effectively protect" the critical habitat of species BUT deletes the criteria for determining if "effective protection" provided. Deletes the requirement for the Minister to give reasons.
SPECIES LISTING
1.Independence and expertise of COSEWIC
Committee change:
When making appointments to COSEWIC, Minister must consult with experts and expert bodies (such as the Royal Society) that the Minister considers to have relevant expertise (still somewhat discretionary).
Government amendment:
No change.
2. Science-based listing of species
Committee change:
"Negative option" approach, with delayed time line. COSEWIC listed species must be added to the legal list unless Cabinet exercises a veto within six months of listing by COSEWIC.
Recommended by SARWG, and vote supported by Alliance.
Government amendment:
Complete reversal back to political listing
Deletes the negative option approach entirely and reverts back to a political listing process, with listing left to the unfettered discretion of Cabinet. The only change from the original wording is that the legal list is now amended by GIC order, rather than by regulation.
Last minute change (3rd reading):
Government amendment retains the Committee's "negative option" listing approach, but extends the time period for change by Cabinet from six months to nine months.
3. Adoption of current COSEWIC list as the initial list under the Act
Committee change:
Partial adoption of current list. All species re-assessed as at close of Committee hearings have been rolled over to the legal list under the Act. Other species that are on the current COSEWIC list but have yet to be reassessed must be reassessed within set time period, depending on their status.
Government amendment:
No change
PROHIBITING DIRECT HARM TO SPECIES AND RESIDENCES
1. Protection of all listed species
Original bill does not prohibit harming all endangered species or their residences.
Committee change:
Modified mandatory safety net. Governor in Council must (previously "may") enforce the safety net where the Minister recommends. The Minister must recommend that the order be made if the Minister is of the opinion (still discretionary) that the laws of a province or territory do not effectively protect a species or its residence. Minister must, in consultation with the provinces and territories, develop criteria as to what constitutes "effective protection." If there is no agreement regarding criteria, the Minister is required to make the order if the Minister determines that the "effective protection" standard has not been met. The Minister is also required to consult with the public prior to recommending that an order be made invoking the safety net.
Government amendment:
Reverts back to discretionary safety net. Governor in Council may enforce the safety net if the Minister recommends. Retains the requirement that the Minister must make a recommendation if the Minister is of the opinion that that the laws of a province or territory do not "effectively protect" a species or its residence BUT deletes the requirement to develop criteria to determine what "effectively protect" means. Deletes the requirement to consult with the public before recommending that an order be made.
EXEMPTION PERMITS AND CONSERVATION AGREEMENTS
1. Quality control for conservation agreements
Committee change:
Any conservation agreements under section 11 that will affect a listed species or any part of its critical habitat or residence must "benefit the species or be required to enhance the chance of its survival in the wild." (Removes the ability to use s. 11 as a means to bypass the requirements of the Act).
Government amendment:
Waters down committee amendment.
The government amendment seeks to incorporate the Committee's amendment into the general wording in ss. (1) rather than include it as a specific requirement. The Committee's wording was stronger, but the government amendment does incorporate the clear intention that section 11 conservation agreements must be for the benefit of a species at risk or enhance its chance of survival in the wild.
2. Exemption permits
Committee change:
Mandatory within federal jurisdiction after action plan.
Now mandatory to obtain an agreement, permit, licence, order or other form of approval for a person to engage in activity adversely affecting the critical habitat of a listed endangered, threatened or extirpated species. Requirement is limited to federal jurisdiction, i.e., only required for federal lands, aquatic species and MBCA migratory birds. Requirement delayed until critical habitat has been identified in an action plan.
Government amendment:
Deletes committee amendment Reverts back to original text, with no mandatory permit process.
Committee change:
Minister now required to give reasons for issuing exemption permits or agreements. A copy of reasons must be included in public registry.
Government amendment:
No change
Committee change:
Under s. 75 as amended, all federal ministers (previously was just "competent minister") must ensure that any agreement, permit, licence, order or other form of approval under another federal Act authorizing an activity affecting a listed species or its critical habitat or residence, meets the criteria in s. 74.
Government amendment:
Deletes Committee amendments, introduces new but substantially weaker section Reverts back to just 'competent' minister in s. 75. Introduces new s. 77 which does impose a due care requirement on "any person or body other than a competent minister" when issuing or approving a licence, permit or other authorization BUT the due care requirement is limited to activities that may result in the destruction of critical habitat. This is much narrower that the due care requirement in s. 75, which extends to activities affecting a listed species, any part of its critical habitat or the residences of its individuals. Furthermore, only two of the three criteria in s. 74(3) have been incorporated; consideration does not have to be given to whether the activity in question will jeopardize the survival or recovery of the species.
Committee change:
There are now penalties associated with failing to obtain or comply with a permit.
Government amendment:
Deletes committee amendment
RECOVERY PLANNING
1. Time limits for completing action plans
Committee change:
Action plans must be completed for endangered species within one year after the recovery strategy is finalized and within two years for threatened or extirpated species.
Government amendment:
Deletes mandatory time lines Deletes prescribed time period for completion of action plans.
COMPENSATION
1. Compensation (s. 64)
Committee change:
Still discretionary, but further clarified: has to be "fair and reasonable," payable to any person for losses suffered as a result of any "extraordinary impact." Now mandatory for government to develop regulations around compensation; as part of that process, government must define what factors will be considered in determining if there has "extraordinary impact."
Government amendment:
Reverts to discretionary authority for government to make regulations.
MISCELLANEOUS
1. Definition of "wildlife species"
Committee change:
Definition to cover "a species, subspecies, variety or geographically or genetically distinct population."
Closer to the COSEWIC and C-65 definition.
Government amendment:
Limits the amended definition. Keeps the word "variety" but deletes "geographically or genetically distinct" and replaces them with the original bill wording of "biologically" distinct.
Broadening the definition of "wildlife species" to include geographically or genetically" distinct species was a specific request in the 2001 scientists' letter, signed by over 1,300 North American scientists.
2. Delegations of authority
Committee change:
Competent minister's authority to delegate to "any person any power under SARA" was narrowed to "any enforcement power to any government in Canada".
Government amendment:
Minor changes to wording, but committee amendment stands.