Law in Quebec

The responsibility for managing land and wildlife in Canada is allocated via a tangled web of legal jurisdiction shared among the federal government, provinces, territories, municipalities and Indigenous peoples. The provinces and territories have primary responsibility within their borders, subject to Aboriginal rights.

The federal legislation governing species at risk is just as complex and convoluted. The Species at Risk Act (SARA), assented on December 2012, was intended to implement Canada’s obligations under the 1992 United Nations Convention on Biological Diversity, ratified by 196 states. It formally sets out a comprehensive framework to conserve biological diversity and protect wildlife species at risk of extinction and their habitats. SARA emphasizes the need to take proactive measures to protect species at risk, and compels the federal government to develop — in consultation with provinces and territories, wildlife management boards and Indigenous peoples — a recovery strategy for endangered or threatened species in the hope that their populations can rebound. Under SARA, recovery strategies must be completed within one year of a species being listed as endangered, or two years in the cases of species that are listed as threatened or extirpated.

But in practice, thanks to its “very cumbersome” mechanisms as one judge put it, the application of federal SARA recovery plans hinges on the cooperation, discretion and goodwill of the various levels of government. It can take many years after a species has been listed before concrete measures are taken to protect it, notes Paule Halley, a Université Laval law professor and Canada Research Chair in Environmental Law. That’s because wildlife and habitat on provincial Crown land are deemed to be provincial property, and therefore under the legislative jurisdiction of the provinces. Bishai has a harsher take: “Delays by both provincial and federal governments are preventing adequate protection of the country’s biodiversity.”

Woodland caribou

The woodland caribou is a case in point. Boreal caribou have been listed as a “threatened” species in Canada since 2003 under SARA, and as a “vulnerable” species since 2005 under Quebec’s Act Respecting Threatened or Vulnerable Species. In 2023, the Quebec government estimated the caribou population to be between 6,100 and 7,400 individual animals, representing about 15 per cent of Canada’s woodland caribou population.

But according to the feds, the caribou population in Quebec, and the rest of Canada, is shrinking because of human-caused habitat loss. A 2023 Environment and Climate Change imminent threat assessment determined that the caribou populations in three Quebec regions have either crossed the threshold of quasi-extinction, are “very close” to reaching it, or could be in about 10 years due to logging and road network expansions. After calls for Quebec to adopt a comprehensive strategy to protect its woodland caribou ostensibly fell on deaf ears, federal Environment Minister Steven Guilbeault initiated this summer the process of making an emergency order under section 80 of SARA in the province, a first without judicial intervention. The emergency order, if approved by the Governor in Council, would prohibit activities that pose “imminent” threats faced by the three most-at-risk boreal caribou populations in Quebec.

“We’re quite glad to see the action being taken in Quebec because unless there is a really comprehensive and coordinated plan to systematically protect that habitat then it seems that it’ll just continue to be chipped away at tree by tree, acre by acre until there’s just nothing left for these animals to rely on which is supposed to be the function of the national species at risk legislation — to provide that backstop to ensure that species don’t face the dire threats that the caribou are now in,” says Joshua Ginsberg, director of the Ecojustice Environmental Law Clinic, an environmental law charity based in Ottawa.

The ban would have a sizeable impact. It would slash Quebec’s forestry potential by 1.4 million cubic metres of wood annually in the three zones where the emergency decree would be imposed, and potentially lead to the loss of 6,500 jobs, according to provincial and industry officials. Under the decree, the federal government may also require changes to a mega-wind farm being planned by Hydro-Québec, in partnership with two Indigenous communities and a regional county government. The $9-billion project, announced in July, plans to develop wind power over a 5,000 square-metre region to the west of Saguenay-Lac-Saint area. “It’s always possible to integrate different considerations into the measures we put in place to ensure we achieve a balance,” says Bishai. “But there must come a point when we have to be proactive in protecting biodiversity, and that point has already come, and may even have been passed by in the case of Quebec.”

Emergency order

The possible imposition of an emergency order has not been well-received by the Quebec government, who view the decree as unjustified and as an intrusion into its jurisdiction. Several rulings, however, examining the scope of s. 80 emergency orders have made it plain that the purpose of the federal legislation is “not at all” to directly encroach on provincial jurisdiction or impose uniform national standards. Under s. 80 the federal government may, on the recommendation of the responsible Minister, issue an emergency order that identifies any habitat for the protection of listed wildlife species and may include provisions that prohibit activities that may adversely affect the species or that habitat. “The emergency decree can prohibit activities in a habitat, but cannot manage the territories,” explains Halley. “So the federal government is not interfering in land management. Rather it is using its criminal rights power, granted to it by the Constitution Act of 1867, to create prohibitions in provincial territory.” Or as the Federal Court of Appeal put it in 2020 FCA 88 in a case dealing with the Boreal chorus frog in Quebec, there is “no longer any doubt” that the threatened interest of environmental protection is one of the “evils that Parliament can suppress” through its criminal law power. The nation’s highest court dismissed the application for leave to appeal in that case.

Case law also holds that the competent federal minister must make the recommendation to the Governor in Council or the federal cabinet under s. 80 if he is of the opinion that the species faces imminent threats to its survival or recovery. In a sorry tale about the Spotted Owl, of which only one is believed to exist in British Columbia’s southwestern old growth forests, Federal Court Justice Yvan Roy castigated this summer federal Environment Minister Guilbeault for violating SARA by waiting eight months to recommend an emergency order to protect the bird. That is nothing new, says Shaun Fluker, a law professor at the University of Calgary specializing in environmental law. “The courts have consistently held the minister to a strict high standard on forming that opinion and forcing the minister to base his or her decision on science,” says Fluker. “That is a clear trend in case law.” Far from clear however is whether the courts will apply those same exacting standards to force the federal cabinet to issue an emergency protection order when it does not want to. The problem, notes Fluker, is that SARA gives the Governor in Council full discretion to make such decisions. “It doesn’t require cabinet necessarily to make that decision based on science – that’s a shortcoming,” says Fluker, who is the lead author in the Biodiversity and Climate Change Assessment being led by the U.S .Geological Survey in collaboration with Environment and Climate Change Canada and Mexico’s National Commission for the Knowledge and Use of Biodiversity.

What is certain is that the federal government is extremely reluctant to make s. 80 emergency orders. There have only been two, both of which were issued after the courts compelled the federal government to reconsider its position. That is not really surprising, say environmental legal experts. The federal government has resorted to using the emergency order as leverage to induce provincial governments to take their own species protection measures. “It’s legitimate for the federal government to warn a province that it is thinking of making an order but it has to follow up very quickly,” says Ginsberg. “That can be an effective tactic because an emergency order is supposed to be a last resort, and only if there are dire threats.”

Conservation agreements

Fluker suspects the federal government is trying to press the Quebec government to sign a SARA s. 11 conservation agreement. These accords, which the federal government can reach with any government, organization or a person “to benefit a species at risk or enhances its survival in the wild,” may include a series of measures such as monitoring the status of the species and protecting the species’ habitat. In pacts dealing with woodland caribou, the federal government has given monies and in exchange the provinces commit to implementing stipulated protection and recovery measures that are usually set out in a schedule in the agreement. To date, seven Caribou conservation agreements have been signed between the federal government and provinces, the latest of which were penned with Manitoba last year and in 2022 with Ontario. According to Samuel Lafontaine, a spokesperson with Environment and Climate Change Canada, Ottawa remains open to collaborating with the Quebec government and to initiate discussions on a caribou conservation agreement.

But many of these conservation agreements fall way short, say critics. “Conservation agreements have the potential to be an effective tool, but in practice most have been little more than agreements to delay action,” says Ginsberg. Some voluntary conservation agreements, says Fluker, such as the deals struck with the Yukon and Northwest Territories provide “real protection” but others are “not worth what’s written in them,” like the one struck with Alberta. Under that agreement, Canada and Alberta have given themselves up to 100 years to achieve naturally self-sustaining status for all woodland caribou local populations in the province. “Alberta’s commitments on boreal caribou are total fluff,” says Fluker.

A 2023 report issued by the Commissioner of the Environment and Sustainable Development, Jerry DeMarco, recommended that Environment Canada work with its “partners to strengthen conservation agreements” to include milestones, measurable targets, clear accountability measures, and sufficient information to track and assess meaningful progress and results to “generate conservation agreements that can be used as mechanisms to protect critical habitat.”

Quebec was expected to issue a comprehensive strategy to protect the Boreal caribou back in 2016 but instead has over the years introduced interim measures for the management of caribou habitat. That may change, according to a recent Quebec Superior Court ruling. The Essipit Innu First Nation Band Council and the Pekuakamiulnuatsh First Nation successfully obtained an order that forces the Quebec government to establish by the end of September a consultation process in connection with the development and implementation of a Woodland Mountain caribou strategy.

Ottawa may succeed at forcing Quebec’s hand to finally implement a comprehensive strategy that will protect woodland caribou. But it is illusory to believe that SARA has actually succeeded in protecting critical habitat beyond what would already be available under protected area or wildlife legislation, says Fluker. “The Species at Risk Act has significant limitations in terms of what it can achieve and and you can see that,” says Fluker. “Species loss is accelerating in Canada it has since go back to the 60s. But SARA has at least systematized legally accountable moments where state authorities can be held accountable for not taking a step or not doing this or that. But when it comes to habitat protection the Act itself is full of holes and relies almost entirely on the exercise of discretion by federal officials.”

Halley has a different take. SARA is far from perfect, says Halley, and it is unfortunately tainted by a political process that is involved in the listing of species at risk and the protection of critical habitat on provincial and territorial lands. But its provisions at least delineate what is reasonable, which facilitates judicial review of decisions, says Halley. “It’s a good start to set the record straight,” says Halley who hopes that public authorities will eventually draw up “ambitious” laws and regulations to protect endangered species.

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This story was originally published in the National, published by the Canadian Bar Association.