By: Dana Poscente and Drew Yewchuk

PDF Version: Reporting Obligations Under the Species at Risk Act: A Review of the Westslope Cutthroat Trout Recovery Strategy Implementation Progress Report

Matter Commented On: Fisheries and Oceans Canada, Report on the Progress of Recovery Strategy Implementation for the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta Population (also known as the Saskatchewan-Nelson River Populations) in Canada for the Period 2014 to 2019 (Species at Risk Act Recovery Strategy Report Series) (Ottawa: Fisheries and Oceans Canada, 2021)

This post discusses the recent “Report on the Progress of Recovery Strategy Implementation for the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta Population” (WSCT Implementation Report), assesses whether the WSCT Implementation Report meets the criteria set out in the Species at Risk Act, SC 2002 c 29 (SARA), and describes the overall problems with implementation reports under SARA.

The Westslope Cutthroat Trout is a freshwater fish native to western North America, recognizable for the orange-red slashes under its lower jaw. Throughout much of its range, this species is the only native true trout, and as such it plays an important role in its ecosystems and is viewed as an indicator species of general ecosystem health (SARA Registry, “Species Details”). The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Alberta population of Westslope Cutthroat Trout as threatened in both 2006 and 2016. The reason for this designation was that the population had been reduced by almost 80 percent through over-exploitation, habitat degradation, and hybridization and competition with introduced, non-native trout. As well, the range of the Westslope Cutthroat Trout is currently less than 20 percent of its observed historical range, and the existing range is severely fragmented (WSCT Implementation Report at 3, citing the 2016 COSEWIC Assessment).

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By: Shaun Fluker

 PDF Version: Federal Government Declines Emergency Order for Southern Mountain Caribou

Matter Commented On: Government of Canada, Statement: Government of Canada’s approach to addressing the imminent threats to the recovery of Southern Mountain Caribou (18 March 2021)

The federal government recently added a Statement on Southern Mountain Caribou to the species at risk public registry announcing that the Governor in Council has declined to issue an emergency protection order under section 80 of the Species at Risk Act, SC 2002, c 29. This statement was a response to the recommendation for the order made by the federal Minister of the Environment following her finding in March 2018 that the southern mountain caribou face an imminent threat to their recovery. I wasn’t planning to comment on this announcement because it is fully consistent with the federal strategy of deference to the provinces on the woodland caribou file, a strategy which I debunked recently in Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou. Accordingly, this announcement was not surprising, or particularly newsworthy in Alberta. However, I changed my tune last Friday afternoon while perusing my inbox looking for a weekly fix of Alberta government spin, and Jason Nixon, the Alberta Minister of Environment and Parks, did not disappoint with his comments in Federal recognition of Alberta’s caribou recovery efforts: Minister Nixon, expressing that the federal Statement is a recognition of Alberta’s strong caribou recovery efforts to date.

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By: Shaun Fluker

PDF Version: Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou

Agreement Commented On: Agreement for the conservation and recovery of the Woodland Caribou in Alberta entered into by Canada and Alberta on October 19, 2020 (the “Canada-Alberta Agreement on Woodland Caribou”)

Decisions Commented On: Canada Energy Regulator Report – Nova Gas Transmission GH-003-2018 (February 2020) and Order-in-Council PC 2020-811 (19 October 2020)

On October 23, Alberta and Canada announced they had finalized an agreement under section 11 of the federal Species at Risk Act, SC 2002, c 29 (SARA) concerning the threatened woodland caribou in Alberta. As I predicted here several years ago, this agreement is the federal government’s response to Alberta’s failure to implement recovery measures and habitat protection for caribou in accordance with the SARA recovery strategy, which clearly documents the Alberta populations as the most at-risk of all the woodland caribou remaining in Canada. This comment examines the actual significance of this agreement for the protection of remaining caribou habitat in Alberta. The short answer is that the caribou would be wise to hold off on celebrating this announcement. This section 11 agreement is unlikely to amount to much, if anything, for them in terms of actual habitat protection on the ground. No one should be fooled by the applause from industry or the self-congratulatory remarks made by our politicians: this agreement is yet another shameful exercise by those who merely want to give the appearance of effective public policy on reversing the decline of woodland caribou populations in Canada. It will do nothing to change the steadfast reliance by regulators on ‘manage and mitigate’ measures – as demonstrated most recently by the Canada Energy Regulator in its Nova Gas Transmission Report GH-003-2018 – that have proven to be overwhelmingly ineffective.

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By: Shaun Fluker

PDF Version: The Cost of Justice for the Western Chorus Frog

Case Commented On: 9255-2504 Québec Inc. v Canada, 2020 FC 161 (CanLII)

This decision is a bit dated as it was issued back in January, but an English translation was only recently published and it caught my attention because I have been following the saga of the western chorus frog under the Species at Risk Act, SC 2002, c 29 (SARA) for several years (see Justice for the Western Chorus Frog? and More Justice for the Western Chorus Frog). In many ways, the case of the western chorus frog encapsulates the SARA story since it was enacted back in 2003: politics over science; missed statutory deadlines; and inadequate funding. SARA has certainly systematized efforts to develop recovery frameworks for threatened species and provided some additional transparency. However, the legislation has done very little to actually protect critical habitat beyond what would already be available under protected area or wildlife legislation. 9255-2504 Québec Inc. v Canada offers a glimpse into the question of who pays the cost of protecting critical habitat for a threatened species. The judgment also includes an unusual amount of detailed testimony from federal officials on how SARA has been applied in this case. Accordingly, this is an important decision not just for the western chorus frog but for all SARA-listed species and those interested in following the application of SARA generally.

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