Province Gains New Powers to Protect Species – But will it use them?
Changes to the Wildlife Act will give the Province new powers to declare fish and plants as endangered, and new powers to protect ‘species residences.’ However, protection of species and their habitat is still dependent on cabinet taking action – an approach that has plagued protection of endangered species in BC for the last quarter-century.
While recognizing that the amendments contain some improvements, West Coast Environmental Law staff lawyer Andrew Gage expressed disappointment at what he feels is “weak and half-hearted legislation.”
“These amendments give the politicians some new tools to protect endangered species,” said Gage. “But they do not require any new protection and do nothing to correct the ‘leave it to the politicians’ approach that has meant only four percent of endangered or threatened species have received protection.”
Gage says the amendments to the Wildlife Act falls far short of what is needed to protect species at risk, and BC legislation is far less effective than parallel federal legislation or legislation in other provinces.
Designating a Species at Risk
Since 1980, the Wildlife Act has allowed cabinet to designate and protect endangered or threatened species. This included the power to protect mammals, reptiles, amphibians and birds. Unfortunately, while scientists at the Conservation Data Centre have listed 108 species of mammals, reptiles, amphibians and birds in BC as endangered or threatened, only four – the burrowing owl, white pelican, sea otter and Vancouver Island marmot – have received any legal protection.
The federal government has taken a different approach under its Species At Risk Act. Under SARA, a committee of scientists determines which species are at risk and in need of protection. Cabinet can overturn this, but the process is driven by science.
“The ‘leave it to the politicians’ approach to species at risk has been a complete failure,” said Gage. “Despite some political promises from the province that listings will be based on science, there’s nothing like that in the Province’s new legislation.”
Protection for a Species at Risk
Once cabinet has listed a species at risk under the Act, the amendments make it illegal to harm members of that species in various ways including damage to “species residence.” However, the prohibition against destroying a “species residence” may do little to protect the needed habitat: the term “species residence” is not a scientific term, but a legal definition that does not cover all habitat. Courts and cabinet will need to interpret the extent to which it can be used to protect critical habitat.
In order for the protection of species residences to have any effect, the cabinet must pass regulations designating that location (or that class of “residences”) as a species residence. Once again, there is no requirement that cabinet designate residences or necessary habitat or that scientific advice on the required habitat be considered.
Cabinet can pass regulations limiting or eliminating prohibitions on destroying species residences.
The Minister of Water, Land and Air Protection can allow activities that threaten species residences – for instance logging, mining or polluting – to go ahead. The activities have to be authorized by statute, but almost all logging, mining and polluting in the Province is authorized by statute. The activity must be carried out in a way that minimizes impact if reasonably possible. And the activity must not “jeopardize the survival or recovery of that species.”
Gage says “the continuation of the ‘leave it to the politicians’ approach may be seen in the above problems. If politicians do not act, species may go extinct or be extirpated as a result of political indifference.”
In addition to leaving species protection up to the politicians, the amendments do not require, or even provide for, the development of a forward looking vision and plan as to how an endangered species can be brought back.
“Most worrying of all,” cautions Gage, “is that the Province’s half-hearted legislation may convince the federal government that it doesn’t need to implement its Species At Risk Act on provincial lands. Already the federal Minister of the Environment has refused to step in to protect the Spotted Owl, saying that the province should have an opportunity to do so.”
Recognizing that British Columbians are concerned about the weakening of the environmental safety net, West Coast Environmental Law provides analysis of legislative changes and their implications. This article is adapted from a longer Deregulation Backgrounder produced by West Coast and available at
http://www.wcel.org/deregulation/bill51.pdf
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