CEC Council instructs Secretariat to develop a factual record on the Species at Risk submission

Montreal, 10 January 2011—The Council of the Commission for Environmental Cooperation (CEC) has instructed the CEC Secretariat to develop a factual record for the SEM-06-005 (Species at Risk) submission.

In the submission, filed with the Secretariat on 10 October 2006, the Sierra Club (United States and Canada), Nature Canada, the David Suzuki Foundation, Conservation Northwest, Environmental Defence, ForestEthics, Ontario Nature, Western Canada Wilderness Committee, BC Nature, Federation of Alberta Naturalists, the Natural History Society of Newfoundland and Labrador, Nature Nova Scotia and Nature Quebec (the “Submitters”), represented by the Sierra Legal Defence Fund (now Ecojustice), allege that Canada is failing to effectively enforce the federal Species at Risk Act (SARA) in regard to requirements for listing species for protection under the Act, recovery planning, and the issuance of emergency orders.

In its response, filed on 8 February 2007, Canada explains that SARA is a relatively new and complex piece of legislation that requires extensive consultations and collaboration. Canada refers to court actions filed by environmental groups in 2006 citing inadequate protection of the Northern Spotted Owl and the Piping Plover. Canada states that in view of these proceedings, the Secretariat should proceed no further with the Submitters’ assertions concerning use of emergency orders and identification of critical habitat. Regarding allegations that the federal government posted only 23 out of 133 recovery strategies that were due in 2006, Canada asserts that the scope and purpose of the NAAEC is not to examine this type of broad-based allegation, rather fact-based incidents, which are lacking in the submission.

On 10 September 2007, the Secretariat recommended to the CEC Council that a factual record be developed for the submission. In its notification that a factual record was warranted for SEM-06-005, the Secretariat observed that the judicial proceedings cited in Canada’s response had been discontinued and, further, that the response left open central questions raised by the Submitters. During development of a factual record, the Secretariat proposed to gather information relevant to considering: whether Canada was failing to effectively enforce SARA sections 42, 41 and 80, specifically as regards delays in posting recovery strategies for 110 species; the alleged failure to identify species’ critical habitats in recovery strategies that have been posted; and a failure by the federal Environment Minister to recommend to Cabinet issuance of emergency orders for the protection of the Northern Spotted Owl in British Columbia and the Woodland Caribou in Alberta, despite the alleged existence of imminent threats to the survival or recovery of these species.

On 20 December 2010, the Council, by means of Resolution 10-05, unanimously decided to instruct the Secretariat to develop a factual record in accordance with Article 15 of the NAAEC and the Guidelines for Submissions on Enforcement Matters under Articles 14 and 15 of the NAAEC, with regard to alleged failures by Canada to effectively enforce sections 41(1)(c) and 42 of the Species at Risk Act, but limited to the 11 species included in Annex I to the Resolution, of the 106 species listed in the annexes to the Secretariat’s notification that a factual record was warranted. Section 80, which involves an exercise of ministerial discretion and which was previously the subject of a judicial proceeding and is currently the subject of a judicial proceeding, will not be included in the factual record, in line with the Council Resolution.

The Secretariat is currently drafting its overall work plan for the development of the factual record.

For more information, please visit the CEC’s “Citizen Submissions on Enforcement Matters” webpage, and the registry of Submission SEM-06-005 (Species at Risk).