What’s Behind the Woeful Implementation of Canada’s Species at Risk Act?

George Hoberg

July 23 2010 scb2010logoalberta

I had the opportunity several weeks ago to speak to the annual meeting of the Society for Conservation Biology in Edmonton at a symposium on “Bridging the Science-Policy Gap in Implementation of Critical Habitat under the ESA and SARA.” I was pleased that a group of conservation scientists reached out to a political scientist interested in the role of science in policy making and the impact of different political institutions on governance and policy.

From my perspective, the underlying problem in this case is the following:  Why don’t governments act to conserve species when science demonstrates significant risks to species viability? There are at least three different kinds of constraints on government action: 

1.       Inadequate science, or inadequate communication of science to policy makers

2.       Political resistance

3.       Institutional design

This post covers the second and especially the third of these three constraints. My bottom line is that inadequate species protection is not a failure of science, or of policy makers’ failure to pay attention to science. It is a failure of policy makers to take actions costly to influential constituents. This failure of political will is in part a characteristic of the policy problem, but can be aggravated by institutional design. The contribution of institutional design to the impact of political motivations can be illustrated by comparing the different laws for the protection of endangered species in Canada and the United States

The Science of Politics

 The first step in understanding the science-policy gap is an awareness of who makes policy decisions: in most cases, it is elected politicians or their direct delegates. One thing we can glean from the “science” of politics, such as it is, is the axiom that politicians are unlikely to take action unless the political benefits of action outweigh the political costs. Policy is made by politicians acting according to political motivations. Conservation biologists, like scientists in other domains, may find this an uncomfortable reality, but it is reality nonetheless. Actions to protect endangered species usually impose costs of some sort, frequently concentrated costs on specific actors whose economic behaviour jeopardizes the species. Unless a politician sees significant political benefits from acting, species protection is likely to be thwarted by resistance from negatively affected interests.

Comparing the ESA and SARA:  Design and Implementation

There are two very significant differences between the US and Canadian federal endangered species acts: the scope and the protective actions forced by the legislation.

Under the US Endangered Species Act, critical habitat is supposed to be designated when the listing decision for a species is made. The ESA provides exceptions under certain circumstances (if critical habitat designation is “‘not prudent’ and ‘not determinable’), but even in those cases there is a hard requirement that it be designated within a year. Agencies have frequently delayed acting, but when challenged, courts have ordered them to act. Once listed, the scope of protection is very broad, preventing “taking habitat” on federal, state, private land.

Since its enactment in 1972, 1375 species have been listed. Recovery plans are in place for 83% of those species, and critical habitat is designated for 43% of them.

Under Canada’s Species at Risk Act, the scope if much narrower and the most critical implementing actions are not covered by time-limited requirements. The listing of a species triggers requirement of the Minister to undertake recovery planning (ss.37-46) and recovery plan implementation (“action planning”) (ss.47-64). The first stage is a more general process. It is only in the “action planning” stage that specific protections for species are implemented. There are specific deadlines on the first “recovery planning” stage. SARA states that recovery plan must include critical habitat “to the extent possible, based on the best available information.”

But here is where the dramatic difference in scope emerges. Critical habitat designation only triggers protection on federal land. The effects of this limitation on scope are quite significant, because unlike the American West, Western Canada has very little federal land. In British Columbia, federal land constitutes only 1%, and it only somewhat higher in Alberta. In contrast, federal land ownership in Alaska is 70%, for Oregon 53%, for Washington 30%, and for California 45%.

Protection on provincial land or private land occurs only through provincial actions as part of the second “action planning” stage, or some other process. And here is where the difference in actions forced by the legislation comes in:  there are no deadlines on action planning. SARA does provide a “safety net” mechanism (Sec. 34) for the federal government to intervene if it determines that “the laws of the province do not effectively protect the species,” but this mechanism in the Act has yet to be used.

The implementation of SARA has been woeful. Agencies have deliberately avoided including critical habitat in recovery plans until the Federal Court has ruled in 2009 that it is illegal not to do so. Recovery planning and critical habitat designation have been very slow. Of the 176 species listed as threatened or endangered prior to SARA coming into full effect in 2003, 40% have recovery strategies, and only 10% have critical habitat identified (Mooers et al 2010). A presentation by Scott Findlay of the University of Ottawa reported more recent results. As of March 2009, for the 322 species currently listed, only 99 (31%) have final recovery strategies. Of those 99 species with final recovery strategies, only 6% had complete critical habitat designation, and an additional 13% has partial critical habitat designated (Findlay et al, “Recovery Strategies and Critical Habitat Identification under Canada’s Species at Risk Act,” under review).

But remember, these actions only directly affect protection on federal land. For the stage of the process that might affect provincial and private land, recovery action planning, there is only one action plan in place in the nation of Canada. That is for the Banff Spring Snail, which exists only in Banff National Park.

The only fully implemented plan under SARA to protect species at risk in Canada is for a snail in a National Park.

The US ESA has been in place much longer than SARA, but the difference in the level of implementation remains striking. The comparative record of the US and Canada suggests that institutional design contributes the divergence in implementation outcomes. In particular, the limited scope of the Canadian Act means that the federal government depends on provincial governments to act. The absence of a legislative deadline for the most important stage of implementation means that reluctant governments, federal or provincial, can get away with inaction. Unless forced by statutory requirements or strong political pressures, governments are unlikely to act to protect endangered species even when the scientific case is strong.

There is currently a Parliamentary Review under way of the Species at Risk Act. This review is an opportunity to strengthen the Act to address the weaknesses of the Act that contribute to this dismal record of implementation.

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