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Species at Risk Act Annual Report for 2009

3 Protection Measures for Listed Species

3.1 Legislative Background

The protection that comes into effect following the addition of a species to Schedule 1 of SARA varies depending on the type of species, the status of the species that is listed, and the species's location in Canada.

Sections 32 and 33 of SARA make it an offence to

  • kill, harm, harass, capture or take an individual of a species that is listed as extirpated, endangered or threatened;
  • possess, collect, buy, sell or trade an individual of a species that is listed as extirpated, endangered or threatened, or any of its parts or derivatives; or
  • damage or destroy the residence of one or more individuals of a species that is listed as endangered or threatened, or of a species listed as extirpated if a recovery strategy has recommended its reintroduction into the wild in Canada.

These prohibitions apply automatically to listed aquatic species and to birds covered by the Migratory Birds Convention Act, 1994 wherever they are found in Canada, and to all other species listed under SARA as endangered, threatened or extirpated, when they occur on federal lands.4

For species other than those in the situations described above, provinces and territories are given the first opportunity to protect listed species. If the province or territory does not act, the Governor in Council, on the recommendation of the Minister of the Environment, may order that the prohibitions in sections 32 and 33 apply for a given species on non-federal lands in a province or territory, or on lands not controlled by Environment Canada or the Parks Canada Agency in a territory. The Minister must make this recommendation if, after consultation with the provincial or territorial minister, and wildlife management board, if required, he or she finds that the species or its residence is not effectively protected by the laws of the province or territory.

3.2 Regulations and Emergency Orders

SARA allows for emergency listings of species on Schedule 1 when the Minister deems that there exists an imminent threat to the survival of a wildlife species. In such a case, the addition of the species would be conducted via ministerial recommendation to the Governor in Council. No emergency listing was recommended by the Minister of the Environment in 2009.

3.3 Permits

Sections 73 to 78 of SARA address agreements, permits, licences, orders and other documents authorizing activities that otherwise would be offences under the Act. If all reasonable alternatives have been considered; if all feasible measures have been taken to minimize the impact of the activity; and if the survival or recovery of the species is not jeopardized, agreements may be made and permits may be issued for the following activities:

  • research related to conserving a listed species conducted by qualified scientists;
  • activities that benefit a listed species or enhance its chances of survival in the wild; and
  • activities that incidentally affect a listed species.

In 2009, Environment Canada continued to manage a web-based SARA permit tracking system to allow for more efficient processing and issuing of permits under sections 73 and 74 of the Act. The Department is finalizing the development of an updated version that will allow for online completion and submission of permit applications. The Department plans to implement the SARA component of the e-Permitting project in the summer of 2010.

Environment Canada issued 26 permits in 2009 to allow the monitoring, inventory and management of a variety of species of birds, mammals, reptiles, amphibians and plants, representing over 100 species. Approximately 60 percent of the permits issued were for scientific research relating to the conservation of the species. Rationales for all permits issued by Environment Canada under the Act are posted on the Species at Risk Public Registry website

The Parks Canada Agency maintains an online research permitting system to enhance services to researchers, and to ensure that the results of research projects on species at risk being conducted in national parks or historical sites are efficiently communicated to the public. The system incorporates a mandatory peer-review mechanism that ensures that every permitted research activity is compliant with SARA. The Parks Canada Agency posted 13 SARA-compliant permits in 2009 to academic and government researchers and Parks Canada scientists for conservation research affecting species at risk.

In 2009, Fisheries and Oceans Canada issued 1257 permits covering at least 14 listed aquatic species. These permits were issued under section 73(2)(c) of SARA to different groups, including fish technicians, consultants, researchers, environmental scientists and National Geographic film crews, whose activities could incidentally harm listed species. Peer-reviewed assessments determined that the level of harm from these activities would not jeopardize the survival or recovery of the listed species. The Department also issued 78 permits, covering at least 45 listed aquatic species, for scientific research aimed at species conservation, and 17 permits for activities expected to benefit the species.

Fisheries and Oceans Canada issued approximately 13 000 licences, containing conditions in accordance with the recovery strategies of the Spotted Wolffish, Northern Wolffish and Leatherback Sea Turtle. The Department issued one exception under section 83 of SARA for the possession of Fin Whale baleen.

3.4 Conservation Agreements

A competent minister may, after consultation with every other competent minister, and with the Canadian Endangered Species Conservation Council or any of its members if he or she considers it appropriate to do so, enter into a conservation agreement with any government in Canada, organization or person to benefit a species at risk or enhance its survival in the wild.

The agreement must provide for the taking of conservation measures and any other measures consistent with the purposes of SARA, and may include measures with respect to

  • monitoring the status of the species;
  • developing and implementing educational and public awareness programs;
  • developing and implementing recovery strategies, action plans and management plans;
  • protecting the species's habitat, including its critical habitat; or
  • undertaking research projects in support of recovery efforts for the species.

Conservation agreements can also be entered into to provide for the conservation of a wildlife species that is not a species at risk.

No agreements were negotiated during the reporting periods.

3.5 Compliance Promotion

The Species at Risk Act recognizes that Canada's natural heritage is an integral part of our national identity and history. All Canadians have a role to play in the conservation of wildlife species and their habitats, and public involvement through education and awareness is essential to maintaining an effective compliance and enforcement program.

Officials from Environment Canada, Fisheries and Oceans Canada and Parks Canada Agency continue to work together to promote compliance with the Act, ensuring that Canadians are informed about SARA and their responsibilities under the Act. Offences committed under SARA can lead to legal proceedings.

Environment Canada is tasked with ensuring compliance with SARA for migratory birds throughout Canada and terrestrial species that are found on federal lands within Canada (other than federal lands under the authority of the Parks Canada Agency). Environment Canada's wildlife officers monitor compliance by checking permits, conducting patrols and inspections, and issuing warnings. They also assist in the delivery of outreach events designed to educate the public and partners about activities that impact wildlife and their habitat, and share information within the Department and with federal and provincial partners. In 2009, the focus of Environment Canada's compliance promotion program was on enhancing coordination and increasing capacity. Work was undertaken to develop a framework for the compliance promotion program for wildlife legislation at Environment Canada. The overall goal of the framework is to build a foundation for the compliance promotion program and to strengthen the coordination of efforts across the country for SARA as well as for the other wildlife legislation administered by Environment Canada.

To support the delivery of compliance promotion, a process to staff compliance promotion positions across Canada began in 2009.

In accordance with the Cabinet Directive on Streamlining Regulations, Environment Canada continued to plan for and carry out compliance promotion for regulatory initiatives, including orders to amend Schedule 1 of SARA. Specifically, in 2009, Environment Canada promoted compliance with SARA through information sessions for other government departments and Aboriginal communities, signage and volunteer guardian programs.

In 2009, fishery officers from Fisheries and Oceans Canada continued working with their partners to promote SARA compliance through education and outreach activities with affected communities and Aboriginal groups. Fishery officers dedicated more than 1364 hours educating Canadians through school visits, trade shows, workshops and community meetings on the threats to aquatic species at risk and how they can help protect them. The following are highlights of Fisheries and Oceans Canada's compliance promotion activities conducted by fishery officers in 2009:

  • educating boat operators, including kayakers and fishing lodge staff, about the guidelines for viewing marine mammals from a safe and responsible distance;
  •  assisting in planning a proposed harvest for the Sea Otter, a species at risk, for food, social and ceremonial uses by Aboriginals, without compromising its recovery;
  • developing a SARA educational toolkit, with presentations tailored to specific school curricula from grades 5 to 12 across Ontario and the Prairies, to introduce children and young people to the concept of species at risk and provide information on what they can do to make a positive impact;
  • providing training to at-sea observers working on fishing vessels on how to identify and properly handle and release species listed under SARA (e.g. wolffish);
  • conducting regular patrols in the inner Bay of Fundy salmon rivers, posting “Set Salmon Free” signs along these rivers, and educating bass and shad anglers on the issues concerning the inner Bay of Fundy Atlantic Salmon population; and
  • working with commercial whelk and Snow Crab fishers to test technology to prevent the entanglement of Leatherback Sea Turtles and marine mammals in fishing gear.

The Parks Canada Agency promotes compliance with SARA by initiating and maintaining public engagement in efforts to mitigate the factors that impact the protection and recovery of species at risk, and by increasing its knowledge of key audiences to help build effective public education programs and initiatives. In 2009, the Parks Canada Agency introduced the Parks Canada Service Prevention Guidelines. These new guidelines support, and therefore recognize the importance of, activities promoting awareness and understanding of species at risk and their habitat.

3.6 Enforcement

Responsibility for the enforcement of SARA is shared by Environment Canada, Parks Canada Agency and Fisheries and Oceans Canada. These federal entities work in partnership with Aboriginal, provincial, territorial and international authorities to ensure that wild species and critical habitat listed under SARA are preserved and protected. More details regarding the applicability of SARA prohibitions can be found on the Species at Risk Public Registry website.

3.6.1 Enforcement Capacity

Environment Canada has the mandate to enforce, across Canada, the wildlife legislation that protects Canadian species. Four acts are grouped under this mandate:

This suite of legislation is aimed at protecting and conserving wildlife species and their habitats nationally and internationally. To ensure the effective enforcement of these acts, wildlife officers work in close cooperation with various national and international partners.

Environment Canada's jurisdiction under SARA is limited to federal lands except for migratory birds. SARA-listed species located on non-federal lands, except migratory birds and fish, fall under the jurisdiction of the province or territory.

The 30 new wildlife officers hired in 2008 underwent training and integration in 2009. As of the end of 2009, Environment Canada's entire on-field action team consisted of 84 officers.

In 2008, the Government of Canada announced improvements to law enforcement capacity in Canada's national parks. Parks Canada's new law enforcement program was implemented on May 7, 2009, with 53 park wardens allocated to 24 national parks and historic sites across Canada. These park wardens are fully dedicated specialists in law enforcement. They are responsible for enforcing all legislation related to Parks Canada's mandate, including the Canada National Parks Act and the Species at Risk Act. Program implementation and planning continued through the fall of 2009, with the addition of five park wardens, thereby increasing the number of parks and sites with warden capacity to 26.

Fisheries and Oceans Canada's enforcement actions under SARA are carried out by more than 635 front-line fishery officers who have been trained and designated as enforcement officers under SARA. Fishery officers are supported by regional and national coordination of SARA enforcement activities. They incorporate SARA enforcement activities into their regular duties under the Fisheries Act and other legislation.

3.6.2 Enforcement Activities

Enforcement activities under SARA include patrolling protected areas, investigating alleged violations, taking measures to compel compliance, and assuring compliance through court action when necessary. Penalties for contraventions of the Act include liability for costs, fines, imprisonment, alternative measures agreements, and forfeiture of proceeds from illegal activities.

Each year, Environment Canada prioritizes its enforcement activities. In 2009, SARA enforcement activities focused on three national priorities:

  • Legal obligation: a legal obligation to investigate exists under section 93 of SARA. It comes into play when receiving a public request that an inspection or investigation be carried out concerning an alleged offence involving SARA-listed species or their critical habitat or residence. This priority also includes inspections related to SARA emergency orders. Such orders are usually issued as emergency actions to protect a species not receiving adequate provincial or territorial protection. Inspections related to emergency orders are essential to addressing immediate conservation concerns.
  • Commercial activities: these involve commercial/industrial activities that may entail the bycatch of SARA-listed species.
  • Critical habitat on federal lands: critical habitat is the habitat deemed necessary for the survival and recovery of species listed under SARA.

In 2009, fishery officers of Fisheries and Oceans Canada dedicated a total of 15 537 hours to operational planning, patrols, inspections, investigations, court cases and other duties related to enforcing the prohibitions of SARA. Enforcement Tracking and Intelligence

Fisheries and Oceans Canada tracks enforcement activities through the Fisheries Enforcement Activity Tracking System. Fishery officers recorded a total of 100 occurrences (reported or observed incidents) related to aquatic species at risk resulting in inspections and investigations of suspected violations. A total of 60 SARA violations were recorded, and 26 charges related to species at risk were laid.

Environment Canada's Wildlife Intelligence Program has a regional intelligence officer for each region and a national intelligence unit. Regional intelligence officers are mainly involved in the collection of operational and tactical intelligence that supports both the investigation and inspection programs. The headquarters unit focuses on strategic intelligence and analysis to determine national and international trends in illegal activities related to wildlife species.

Parks Canada Agency tracks enforcement activities through the Occurrence Tracking System. In 2009, park wardens recorded a total of five law enforcement occurrences related to the protection of species at risk and enforcement of the Act in national parks and historic sites. There were no charges or prosecutions under the prohibitions of SARA. Inspections

Environment Canada's inspection efforts target areas where a positive conservation result is foreseeable. Regulated communities subject to inspection for the protection of SARA-listed species may include possessors, breeders and artificial propagators of wildlife, businesses selling wildlife and wildlife products, the scientific community, zoos and permit holders. Human activities on federal lands can also have an impact on SARA-listed species and can result in investigations and/or charges related to habitat destruction, illegal capture, poaching, removal from the wild, or disturbances of residences and/or critical habitat. The list of general prohibitions under sections 32 to 36 can be found on the SARA Public Registry website.

A total of 53 inspections were carried out in 2009; of these, ten turned out to be offences. Note that an inspection can include several activities or audits and can take place over a period of several days depending on the type of audit.

As part of their enforcement work, fishery officers conduct regular and targeted inspections to make sure Canadians are complying with SARA. In 2009, fishery officers conducted inspections at galleries and brokers involved in the trade of marine mammal parts such as walrus and narwhal tusks. They also patrolled the Atlantic Whitefish watersheds, inspecting people, vehicles and fishing gear, and carried out regular inspections of groundfish catches for any incidental catch of Northern, Atlantic or Spotted Wolffish. Investigations

In 2009, Environment Canada successfully prosecuted two cases involving SARA-listed species, one in the Pacific and Yukon Region and one in Ontario.

Pacific and Yukon Region: In February 2009, two commercial photographers were fined a total penalty of $6,000 for charges stemming from an investigation into the damaging of a residence belonging to the Western Yellow-breasted Chat, a bird species listed as endangered under SARA. Following a complaint received in 2006, federal wildlife officers learned that a significant amount of wild rosebush had been removed from an area adjacent to the nest of the birds, and upon further investigation, they established that the photographers had removed the vegetation to take pictures of the adult birds feeding their young. The two men then photographed the birds for three consecutive days. Both were given conditional discharges, which will take effect after they serve a 12-month probation period. One of the photographers was ordered to pay $4,000 and the other was ordered to pay $2,000 to Environment Canada's Canadian Wildlife Service to help fund research into species at risk. The court also ordered the pair not to disseminate, or profit from, any of the Western Yellow-breasted Chat photographs they had taken after damaging the birds' residence.

Ontario Region: On August 5, 2009, a Toronto man pleaded guilty to two counts of unlawfully capturing Blanding's Turtles and a Spotted Turtle contrary to the Species at Risk Act. He was sentenced to nine months of jail time and given three years' probation. This conviction, the second under SARA, was the result of a joint investigation with the Ontario Ministry of Natural Resources that started in 2007 with the arrest of the individual and another Toronto man, who was tried in 2008 and sentenced to three years probation and ordered to pay a $10,000 fine. The Blanding's Turtles were returned to the wild but the Spotted Turtle was dead when it was seized. Both species are listed in Schedule I of  SARA--the Spotted Turtle as endangered and the Great Lakes-St. Lawrence population of the Blanding's Turtle as threatened.

Investigations are an important part of fishery officers' enforcement work. They occur in cases where noncompliance has been discovered. An example of a major investigation that led to convictions is described below.

A three-year multi-country Fisheries and Oceans Canada investigation around threatened Northern Abalone concludes successfully

Fisheries and Oceans Canada (DFO) in the Pacific Region successfully concluded a three-year multi-country, multi-agency operation involving the illegal sale and possession of Northern Abalone, a threatened species under SARA.

Two companies were successfully brought to trial and fined $25,000 and $35,500, respectively, following an investigation triggered in 2007, in part, by an alert regarding suspicious activity supplied by a Canada Border Services Agency (CBSA) inspector. An amount of $34,500 was directed to DFO to promote conservation and protection of Northern Abalone through scientific research. A team of DFO fishery officers spent months unraveling the complex trail of illegally harvested and illegally trafficked Northern Abalone.

Members of DFO's Conservation and Protection Intelligence and Investigation Services Unit traveled to the United States and Mexico as part of the investigation, which also uncovered a related abalone smuggling operation at the United States-Mexico border near Tijuana. The case subsequently involved not only Canadian enforcement agencies--including the CBSA, the Canadian Food Inspection Agency, the Royal Canadian Mounted Police, the Province of British Columbia and DFO--but also led to international collaboration with the National Marine Fisheries Service (NMFS) in California and Washington States, the State of California Department of Fish and Game, the U.S. Fish and Wildlife Service in California and Washington States, U.S. Customs, and authorities in Mexico.

In addition to the above prosecutions and abalone seizures, the investigation led to the discovery of a significant quantity of Northern Abalone (around 750 pounds) in the Lower Mainland of British Columbia. The animals were seized and taken out of circulation by DFO fishery officers and forfeited under court order. Molecular genetics research scientists from DFO's Pacific Biological Station in Nanaimo provided conclusive forensic DNA evidence for the court that aided in successful prosecutions or guilty pleas on both sides of the border. With the assistance of DFO's Intelligence and Investigation unit and the DNA evidence, the NMFSin San Diego successfully obtained a conviction in this operation in September 2009.

4 Under SARA, “federal land” includes, but is not limited to, Canada's oceans and waterways, national parks, military training areas, national wildlife areas, some migratory bird sanctuaries and First Nations reserve lands.