Canada: Will 2018 Be The Year British Columbia Enacts Species-At-Risk Legislation?

Despite being Canada's most biologically diverse province and the home of some of Canada's most vocal environmental advocates, BC does not have any provincial species-at-risk legislation. In 2017 opposition MLAs introduced three private member bills regarding species-at-risk (SAR) legislation in the Legislative Assembly, but none were advanced under the Liberal government.

Background

Under the previous Liberal government Andrew Weaver of the BC Green Party tabled a private member's bill introducing the Endangered Species Act, 2017 (ESA #1) for first reading on February 27.¹ On February 28, George Heyman (now minister of environment and climate change strategy) of BC's New Democratic Party tabled a private member's bill introducing the Species at Risk Protection Act, 2017² (SRPA). Neither of these bills progressed beyond first reading prior to the dissolution of BC's Liberal government on April 11, 2017. On November 6, under BC's new NDP government, Andrew Weaver again tabled a private member's bill to introduce the Endangered Species Act, 2017³ (ESA #2).

Proposed legislation to date

Weaver's ESA #2, which received minor amendments prior to being re-introduced in November, purports to be based on Ontario's Endangered Species Act, the American federal Endangered Species Act, and SAR legislation that was tabled by the BC NDP in 2011. The legislation proposes to establish a reactive regime to identify, protect and rehabilitate at-risk wildlife and habitats, as well as a proactive regime "that will prevent healthy species from declining in the first place."⁴

Some of the measures proposed in ESA #2 include:

• that community knowledge and First Nations traditional knowledge must be considered as part of the "best available scientific information" to guide the interpretation and administration of the act;
• establishing the Scientific Committee on Endangered Species that would be responsible for, among other things, developing criteria for assessing and classifying species as extinct, extirpated, endangered, threatened or as a species of concern and then applying this criteria, and for recommending management plans for the protection and recovery of species and for protecting habitat that is home to listed species;
• creation of a SAR list;
• prohibition on killing species included in specified classifications on the SAR list and on damaging the habitat of species included in specified classifications;
• a requirement for the minister to, under the guidance of the Scientific Committee on Endangered Species, develop recovery strategies for all species listed as endangered or threatened, and for species listed as extirpated in specified situations;
• establishing a Natural Resource Board Committee that would be responsible for considering applications for exemption from the act. The proposed procedure for these applications includes the potential for consultations, additional biological assessments, and the consideration of mitigation measures;
• provisions for search, seizure and forfeiture of items or evidence arising from offences under the act and for arrest without warrant for offences under the act; and
• penalties ranging from orders to comply with the act to fines up to $2 million and/or imprisonment of up to one year.

ESA #2 contains many elements that are similar to the federal Species at Risk Act (SARA). Similar elements include establishing a scientific committee to classify species, using five categories of risk and the requirement for recovery plans. However, ESA #2 appears to be more rigorous in its enforcement of protective measures by requiring that recovery plans be established with the guidance of the scientific committee, the establishment of an additional committee to approve any exemptions from the act, and the ability to arrest without a warrant based on the reasonable belief that an offence under the act has occurred or is about to occur.

The broader powers contemplated for the scientific committee under ESA #2 appear to address the concern that the implementation and enforcement of potential SAR legislation be grounded in science, rather than in policy. This concern is reinforced by the proposed Natural Resource Board Committee, which would also be composed of individuals with knowledge in either a scientific discipline or traditional Aboriginal knowledge.

The SRPA appears to tread a middle ground between the ESA #2 and SARA. It includes some of the broader search and seizure provisions included in ESA #2 and also leaves out the defence of due diligence for offences under the act. However, it follows SARA by leaving the responsibility of developing recovery strategies and approving exemptions from the act solely with the minister responsible.

Is SAR legislation imminent?

The fact the BC NDP has a recent history of proposing SAR legislation (it also introduced versions of SRPA in 2010 and 2011), indicates BC may see the introduction of SAR legislation under the current government. The fact the NDP relies on the support of the BC Green Party to stay in power, means any future legislation may include at least some elements from ESA #2. It is therefore prudent for project proponents and owners of significant real estate portfolios to consider the implications of such legislation on their operations.

The author wishes to thank articling student Sabrina Spencer for her help in preparing this legal update.

Footnotes

1. Bill M224-2017, Endangered Species Act, 2017, 6th Sess., 40th Parl., British Columbia, 2017 (first reading 27 February 2017) [Endangered Species Act #1].

2. Bill M226-2017, Species at Risk Protection Act, 2017, 6th Sess., 40th Parl., British Columbia, 2017 (first reading 28 February 2017) [Species at Risk Protection Act].

3. Bill M208-2017, Endangered Species Act, 2071, 2nd Sess., 41st Parl., British Columbia, 2017(first reading 6 November 2017) [Endangered Species Act #2].

4. Endangered Species Act #2.

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