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Wild Animal Law of Canada
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Species at Risk Act (NB)(current to 01 June 2016)
Note Re Application of the Species at Risk Act ('SARA')
This law bears on the wildlife issues of:- PROTECTION
- HABITAT
- OWNERSHIP/POSSESSION
- SALE
The full current text of this legislation (including regulations) may be viewed at the New Brunswick statute website.
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Table of Contents
1. Overview
2. Assessment and Designation of Species at Risk
(a) Overview
(b) Designation Process
3. Administrative Programs for Species at Risk
4. Protections
(a) General Protections Applicable If Provided in the Regulations
(b) Interim Protection Orders
5. Enforcement
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1. Overview
New Brunswick's Species at Risk Act ('SARA') is typical of the endangered species legislation in most other Canadian provinces. It's stated purpose is to "prevent wildlife species from being extirpated from the Province, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to conserve species of special concern to prevent them from becoming endangered or threatened" [SARA 2].
For these purposes 'wildlife species' means "a wild species, subspecies, variety or geographically or genetically distinct population of animal, plant or other organism, other than a bacterium or virus, that is native to the Province, or has extended its range into the Province without human intervention and has been present in the Province for at least 50 years" [SARA 1].
Additionally, the Minister of Natural Resources is expressly required to apply the environmental 'precautionary principle' in "preparing or adopting a management plan, a recovery strategy or an action plan, and in undertaking a protection assessment". This is the principle that "if there is a threat of serious or irreversible damage to a wildlife species, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to avoid or minimize the threat" [SARA 3].
Lastly, the provisions of SARA and it's Regulations are made paramount in the event of conflict with the Protected Natural Areas Act, the Crown Lands and Forests Act and any regulations made under those Acts [SARA 5].
2. Assessment and Designation of Species at Risk
(a) Overview
The four categories of species at risk are as follows [SARA 1]:- Extirpated: "a wildlife species that no longer exists in the wild in the Province, but exists elsewhere in the wild."
- Endangered: "a wildlife species that is facing imminent extirpation from the Province or extinction."
- Threatened: "a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation."
- Species of Special Concern: "a wildlife species that may become a threatened species or an endangered species because of a combination of biological characteristics and identified threats."
The species in each of these categories are listed here: List of Species at Risk Regulation.
(b) Designation Process
SARA creates a Committee on the Status of Species at Risk (COSSAR) [SARA 8], which has a duty to assess and recommend to the Minister classification of wildlife species (that have been referred to it in a Ministerial status report) whether they are species at risk, and if so into what category they should be placed [SARA 15,16]. Species determined to be at risk by the Minister are then accordingly 'listed' in Regulations under SARA [SARA 18] (see link above). Emergency designations may be made by the Minister in the case of "imminent threat to the survival of a wildlife species" [SARA 19].
3. Administrative Programs for Species at Risk
Various Ministerial administrative programs apply to the different catgegories of species at risk, as follows [SARA 20-23]:- Management Plans (for Species of Special Concern)
The Minister is required, in the case of species of special concern, to prepare management plans which shall "identify [conservation] measures that the Minister considers appropriate".
- Assessments of Feasibility of Recovery, Recovery Strategies and Action Plans (for Extirpated, Endangered and Threatened Species)
The Minister is required, in the case of extirpated, endangered and threatened species, to conduct an assessment as to whether recovery of the species is feasible". To be considered in such assessments are "technical, social and economic factors in addition to biological factors", and the result can include the conclusion that recovery is not feasible.
If it is concluded that recovery is feasible the Minister shall prepare a recovery strategy for the species. Contents of a recovery strategy include, where possible:
- a description of the biophysical and functional attributes that meet the habitat needs of the wildlife species,
- a description of the threats to the survival and recovery of the wildlife species and a description of the broad strategies to be taken to address those threats,
- a statement of the population and distribution objectives that will assist in the recovery or survival of the wildlife species, if it is possible to formulate those objectives,
- a general description of the research and management activities that may assist in recovery and survival of the species, and
- identification or survival and recovery habitat for the species.
For these purposes, 'habitat' means "an area, site or structure that provides conditions suitable for an individual of a wildlife species to carry out any of its life processes, including breeding, nesting, denning, spawning, rearing, staging, migrating, wintering, feeding or hibernating", and 'survival habitat' means "habitat that is currently or regularly occupied by a wildlife species" [SARA 1].
The Minister may, in light of any recovery strategy, further prepare or adopt an 'action plan' for the survival and recovery of the species at risk, which shall contain "measures to be taken .... to address issues identified in the recovery strategy, and proposals for the timing of those measures".
Status reports, COSSAR assessments, SAR Lists, management plans, the results of assessments of feasibility of species recovery, recovery strategies, action plans, protection assessments, and permits are required to be published in the Species at Risk Registry [SARA 17,18,20,21,22,23,25,41,67].
4. Protections
(a) General Protections Applicable If Provided in the Regulations
Under SARA, the following general protections may apply to "an extirpated species, an endangered species or a threatened species, but only if the regulations specifically provide for their application [SARA 28,29]:
- Harm
No person shall kill, harm, harass or take any individual that is listed as an extirpated species, an endangered species or a threatened species.
- Possession/Sale
No person shall possess, buy, sell or trade:
. an individual that is listed as an extirpated species, an endangered species or a threatened species, or
. a part or a derivative of an individual that is listed as an extirpated species, an endangered species or a threatened species.
- Habitat Protection
A designation of "an area, site or structure" as survival or recovery habitat.
For these purposes, 'habitat' means "an area, site or structure that provides conditions suitable for an individual of a wildlife species to carry out any of its life processes, including breeding, nesting, denning, spawning, rearing, staging, migrating, wintering, feeding or hibernating", and 'survival habitat' means "habitat that is currently or regularly occupied by a wildlife species" [SARA 1].
However, at present, only the following species (a partial list of endangered species) are covered by the first two of these protections (harm and possession/sale) Prohibitions Regulations. None are yet covered by the habitat protection provision.
Whether a species or category of species at risk is covered by these protections [in (a) above] is determined by the Minister, by way of a 'protection assessment', normally conducted after a recovery strategy is completed [see s.3 above] is published [SARA 24,25-27].
The Minister may issue permits permitting activities otherwise prohibited in this section, including to kill and take specimens [SARA 34-36]. Such permits may be issued for conservation, religious and scientific purposes, must be considered a last resort to achieve the sought purpose and must not put the species at further risk, and may be subject to remedial or compensatory conditions.
(b) Interim Protection Orders
Where a protection assessment (above) is not yet completed [and thus the species is not under any of the protections cited in (a) above], or where it has but there have since been changes resulting in an imminent threat to the survival or the species, the Minister may also issue protection orders to individuals prohibiting specified activities if their continuation is likely to [SARA 31]:
- kill, harm, harass or take an individual of a listed extirpated species, an endangered species or a threatened species;
- damage or destroy the habitat of a listed extirpated species, an endangered species or a threatened species;
For these purposes, 'habitat' means "an area, site or structure that provides conditions suitable for an individual of a wildlife species to carry out any of its life processes, including breeding, nesting, denning, spawning, rearing, staging, migrating, wintering, feeding or hibernating" [SARA 1].
- kill, harm, harass or take an individual or damage or destroy survival habitat or recovery habitat of a wildlife species for which the Minister has received an assessment from COSSAR classifying the wildlife species as an extirpated species, an endangered species or a threatened species but which has not yet been listed.
For these purposes, 'habitat' means "an area, site or structure that provides conditions suitable for an individual of a wildlife species to carry out any of its life processes, including breeding, nesting, denning, spawning, rearing, staging, migrating, wintering, feeding or hibernating", and 'survival habitat' means "habitat that is currently or regularly occupied by a wildlife species" [SARA 1].
5. Enforcement
SARA also contains standard-form enforcement provisions including the use of conservation officers appointed under the Fish and Wildlife Act having powers [SARA 42-43,45-46,50]:
- of peace officers,
- to issue stop orders against current or impending violations of SARA, or of permits issued under SARA;
- search authority (warrants required where practicable or for dwelling places);
- seizure of vehicles used in relation of violations in the course of lawful searches.
Additionally, a broad range of prosecutable offences also exists [SARA 62].
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