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2004 - The Environment: Emerging Scientific Knowledge and Managing Legal Risk

Canada’s Marine Species at Risk:
Science and Law at the Helm, but a Sea of Uncertainties

David L. VanderZwaag
Canada Research Chair in Ocean Law and Governance
Marine & Environmental Law Institute
Dalhousie University

Jeffrey A. Hutchings
Canada Research Chair in Marine Conservation and Biodiversity
Department of Biology
Dalhousie University

Prepared (without citations) for the Law Commission of Canada Roundtable on Law and Risk, March 29, 2005, Ottawa.

This paper was prepared for the Law Commission of Canada under the title “Canada’s Marine Species at Risk: Science and Law at the Helm, but a Sea of Uncertainties”.  The views expressed are those of the authors and do not necessarily reflect the views of the Commission. The accuracy of the information contained in this paper is the sole responsibility of the authors. 

The full paper has been published at (2005) 36 Ocean Development & International Law 219-260.
 

ACKNOWLEDGEMENTS

The authors would like to acknowledge the research assistance of Michelle E. Kellam (LL.B. student, Dalhousie Law School) and Louise de Mestral Bezanson (Honours Student, Dalhousie Department of Biology).

Scientific studies in relation to Canada’s marine environment are not painting a pretty picture. In parts of the ocean, over 90 percent of the large predators, including tuna, swordfish and cod, have disappeared with clear linkages to overfishing. The Committee on the Status of Endangered Wildlife in Canada (COSEWIC), the expert body established to assess and classify species at risk, has already listed numerous marine fishes and marine mammals as endangered, threatened or of special concern. It is hard for Canadians to fathom that some cod stocks, once thought to be inexhaustible, may now be endangered (Newfoundland-and-Labrador population) or threatened (Laurentian North population) with extinction. Inner Bay of Fundy Atlantic salmon populations are listed as endangered and while about 40,000 adults were estimated in the 1970s, the number has declined to the few hundred range.

Saving endangered and threatened marine species in the difficult “real world” of increasing human pressures and resource demands is likely to become one of the major battlegrounds of the century. A litany of ocean uses carries threats to wildlife species at risk. These include: ships colliding with endangered whale species; whale-watching vessels altering behaviours of marine mammals; offshore hydrocarbon seismic testing and drilling; naval deployment of sonar which has been linked to beachings of some marine mammals; land-based pollution; coastal aquaculture operations; vessel-source pollution, including invasive species introduced from ballast water; and heavy fishing pressures.

The management of risk to marine wildlife species brings to the scholarly forefront deep societal differences in values and interests and varying views on how precautionary decision-makers should be. Those with eco-centric perspectives are likely to view species at risk as meriting protection at all costs and to favour strong versions of precaution, for example, placing the legal burden of proof on development proponents to demonstrate no significant environmental harm (or some other standard such as no serious or irreversible damage) before being allowed to proceed. Those with “deep” ecological views are also likely to perceive ecological integrity and ecological health as necessary preconditions to societal and economic sustainability. Persons with utilitarian worldviews are likely to support weaker versions of the precautionary approach where only cost effective measures are necessary and where some adverse impacts on species at risk may be justified in light of social and economic benefits such as job creation. Those with “shallower” ecological views may also conceptualize sustainable development differently as a process of giving relatively equal weight to social, economic and environmental factors.

This paper examines, in a three-part format, Canada’s legislative “lifeboat” for saving species from extinction, the Species at Risk Act (SARA), and how it has fared in its first two years of implementation in navigating value and interest conflicts with a particular focus on efforts to protect marine fish species.

Part 1 explores how SARA has notionally placed law and science at the helm in the quest to protect endangered and threatened species. COSEWIC, a committee with scientific expertise, has been formally established to assess the status of wildlife species. SARA provides nine major legal levers for protecting listed species, including general prohibitions against harming species or damaging their residences, and the designation of critical habitats for protection.

However, as decision-makers, bureaucrats and societal passengers leave port into practical implementation, a sea of uncertainties must be faced. The tangle of challenges, discussed in Part 2, include: contested listing criteria; a politicized listing process; hazy general prohibitions; leeway for incidental harm permitting; recovery strategy and action plan fogginess; critical habitat issues; unsettled relationships with other federal laws; and methodological tensions in how risks should be managed.

Perfect storms are brewing on the horizon in light of the “low pressure systems” converging. The “low” of losing species to extinction meeting up with the “low” of losing jobs and social displacements seem bound to spawn gargantuan political waves.

In order to weather the storms, Part 3 of the paper suggests a number of future directions. Canada cannot rely on the SARA boat alone, but must tether SARA to full implementation of Canada’s Ocean’s Act, including the establishment of a network of marine protected areas and the development of integrated management plans. Modernization of the Fisheries Act is long overdue and enactment of a federal aquaculture act is needed.

Shoring up the SARA gunnels is also necessary. Administrative policies remain to be finalized, particularly how residences and critical habitats will be addressed in the marine context. Regulatory clarifications have yet to be put in place, for example, how compensation issues are to be addressed and what the full contents of recovery strategies and action plans should be.

Chinking the three main loopholes of SARA through future amendments is also proposed. Listing of species at risk could be left in the hands of COSEWIC instead of the politicized listing approach permitted by SARA. Ministerial discretion to grant incidental harm permits needs to be curbed, for example, through peer review and public review processes of the “no jeopardy” judgment. The largest gash in the SARA keel may prove to be the ability for recovery strategies and action plans to legitimize harmful and destructive activities. Criteria and a process or processes should be put in place to avoid swamping the purposes of SARA, which are to avoid species’ extinctions and to allow listed species to recover.
Saving of species in the end will involve much more than law reform and improving scientific knowledge regarding species and marine ecosystems. Society as a whole has to move from a “deathbed” approach to conservation towards “holistic health” where humans live within the bounds of ecological integrity and biodiversity richness. Changing human values and curbing strong commercial, industrial and recreational interests will not occur through “quick fixes” or come easy. Legal principles, such as the precautionary approach, ecosystem-based management and intergenerational equity, are contributing to paradigm shifts, but societal transition will take all the energies that the social sciences and humanities can muster.