Canadian Species At Risk Act and U.S. Endangered Species Act Comparison
Updated from an Overview provided by Kate Smallwood, Sierra Legal Defense Fund
SUMMARY
As written, the Canadian Species At Risk Act (SARA) is weaker than the U.S. Endangered Species Act (USESA) in terms of the protection it provides for endangered species and their habitat. However, it remains to be seen which piece of legislation is more effective in the real world.
The main differences are as follows:
Listing
The USESA requires the listing of all species that are scientifically determined to be endangered
SARA permits a "negative option" approach for listing, allowing Cabinet to not add any species scientifically determined to be endangered (by COSEWIC) to the legal list within nine months of COSEWIC's listing.
Basic Prohibitions
The USESA prohibits the killing or harming of all endangered species.
SARA prohibits killing or harming of about 40% of Canada's endangered species: those on federal land or under federal jurisdiction.
Recovery
USESA requires recovery plans for all listed species
SARA requires recovery plans for listed species only if recovery is deemed "feasible". If recovery is not deemed feasible the competent minister must state why on the public registry why.
Habitat Protection
The USESA automatically provides habitat protection for all species on all lands.
SARA only provides for habitat protection on federal lands (which cover less than 5% of Canada outside the Yukon and NWT) and only after critical habitat is determined. (Provincial and private lands may be protected under limited circumstances)
Citizen Enforcement
The USESA gives citizens an unrestricted right to bring private enforcement actions when government is not enforcing the Act or any other violation of the Act (the Attorney General may take over the case and prosecute it, but does not have the right to just stop it).
SARA will not allow citizens to bring private enforcement actions, even when government is failing to enforce the law.
Note that citizen enforcement actions have been a massive problem for the USESA. In May 2003 the Interior Department's U.S. Fish and Wildlife Service stated that the number of court orders requiring critical habitat designations is undermining conservation by depleting available funds.
The Assistant Secretary of the Interior for Fish and Wildlife and Parks, Craig Manson, is quoted as saying:"The Endangered Species Act is broken. This flood of litigation over critical habitat designation is preventing the Fish and Wildlife Service from protecting new species and reducing its ability to recover plants and animals already listed as threatened or endangered. Imagine an emergency room where lawsuits force the doctors to treat sprained ankles while patients with heart attacks expire in the waiting room and you've got a good picture of our endangered species program right now." Read the press release.
Approach
SARA takes a more cooperative approach than does the USESA.
Two examples are:
- a greater focus on prevention -- SARA provides for the listing of "vulnerable" species, which allows for the development of management strategies to prevent species from ever becoming threatened or endangered, and
- a greater focus on incentives; SARA has a stewardship program and fund to accompany the law, which will be used to support private protection efforts.
One issue that will further complicate comparisons between the two acts is that there are far fewer endangered species in Canada than in the U.S. (971 (USA) versus 107 (Canada)).
Because of the large number of endangered species present in the U.S., protection has implications for a great many land owners and users. Canada's number of endangered species is currently at a much more manageable level. As a result we can protect most of our species without the kinds of difficulties experienced in the U.S. (if effective action is taken now, before the issue becomes larger and more difficult to deal with).
U.S. Fish and Wildlife Service Website (overview of the USESA)