Hi Santi,

Ocean Wise has a few comments for the Seafood Watch criteria review process that we would like to share. Overall we feel the criteria are much more robust than it was a few years ago and are pleased that there is now a quantitative scoring for each factor. Below is my feedback around how to recognize endangered or threatened species. My colleague Laurenne (cc’d here), who we’ve just hired as a research analyst to write some of the EAP reports, will be sending along some more detailed comments on other factors next week.

We feel that COSEWIC (Committee on the Status of Endangered Wildlife in Canada) should be considered by Seafood Watch as one of the scientific bodies that ranks species as threatened or endangered rather than SARA (Species at Risk Act). There are many examples of the Canadian government is failing to follow scientific evidence and protect species under SARA as recommended by COSEWIC. Many species fail to be listed under SARA due to social, economic or political impacts with fishes representing the taxonomic group least likely to be listed. Since 2004, only 35% of marine fish assessed by COSEWIC as “at risk” have been added to the list and no marine fish have been listed as endangered or threatened, which would automatically grant them protection against harm.

Even species listed under SARA are not being protected effectively. It has been found that 86% of the legally protected species in Canada either maintain the same level of risk or have deteriorated over time. (http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0113118)

Concerns have been raised over the ineffectiveness of SARA by the Auditor General, in the court of law and scientific literature. We have attached a few supporting documents and articles which highlight the deficiencies of SARA.

We feel that fisheries targeting animals listed as vulnerable or threatened by either an international, national or state government body and specially in Canada, species listed under COSEWIC should be automatically receive an avoid ranking.

Thanks again and happy holidays!

Best,

Teddie Geach Ocean Wise Account Representative Vancouver Aquarium Marine Science Centre

From Laurenne

Comments on Seafood Watch Criteria for Fisheries As a preface, I recently joined the Ocean Wise team (December 1st), so I am just starting to work with the SW assessment criteria and have only had a chance to read through it completely a couple of times. I understand the numerous challenges that go into developing and executing a grading system that can assess a variety of different fishing practices (i.e., small-scale vs. industrial, coastal sessile inverts vs. migratory pelagic fish), so hopefully my comments won’t come across as overly critical. I see incredible value in this system and my intention is to provide as much constructive feedback as I can to help make it as user-friendly and accurate as possible. Given my limited experience with the Seafood Watch system, please forgive me if some of my comments are misplaced due to my own misinterpretation/ misunderstanding of the grading system—I’m definitely still learning. Please don’t hesitate to contact me (Laurenne.Schiller@vanaqua.org) for clarification on any of my questions and suggestions!

Overall, I have found the assessment criteria to be fairly challenging to interpret and ambiguous in various sections. I understand detail is essential for this type of approach, but scoring criteria also have to be flexible enough to address multiple types of fisheries (big and small, distant water and EEZ, inverts and fish). I believe this is one overarching goal that should be kept in mind at all times when revamping the assessment criteria.

Criterion 1: Impacts on the Species under Assessment

• For the assessment of stock abundance (Factor 1.2), I believe that a greater differentiation in the scoring based on the quality of data or assessment methods is needed. I think the scoring should reflect not only the status of the assessed stock, but also the quality of the data used to get that status (e.g. independent survey or fisheries-based) and the assumptions in the models used. Under the current scoring scheme, the tradeoff between stock status and assessment quality is vague. Perhaps a scoring system where the stock is initially scored based on its status (e.g., Bcurrent/Bref or another means) and subsequently adjusted based on the data/models used might allow for more transparent and consistent scoring;

• The assessments of fishing mortality (Factor 1.3) utilize reference points based on FMSY. Given that MSY is a stock-specific concept (i.e., a function of carrying capacity, K, and intrinsic growth rate, r), how is it to be applied in the assessment of mixed-gear fisheries? If the total fishing mortality from multiple fisheries exceeds FMSY (or some other reference point derived from FMSY), does that not preclude all fisheries targeting that stock from receiving a low score (i.e., High Concern) on Factor 1.3, even if the fishery in question is a non-significant contributor to the

total fishing effort? (E.g., artisanal handliners targeting the same tuna stock as industrial longliners and purse seiners). Here, I assume that the qualifier that the fishery is a “substantial contributor” to fishing mortality applies only in the assessment of bycatch fisheries. Again, would it be possible to design a scheme where the fishing mortality score is based on a) Ftotal relative to FMSY, b) quality of the model (or models if different fisheries were assessed differently) used to assess Ftotal, and c) contribution of the fishery in question to Ftotal?;

• In the scoring of Factor 1.3, the protection of a large proportion of the spawning biomass is listed as one of the qualifiers under Conservation Concern: Very Low Concern. I believe this is more of a management measure and should be reflected in Criterion 3 instead;

• Similarly, for Conservation Concern: High Concern, I do not agree that the presence of overfishing alone should be seen as High Concern as long as the stock is not presently in an overfished state and an appropriate/explicit measure is in place to reduce the fishing effort once the stock biomass reaches the target biomass;

• I believe the weighting of Factors 1.2 and 1.3 should be adjusted to allow the current stock status to weigh more than fishing effort.

Criterion 2: Impacts on Other Species

• Given the difficulties associated with obtaining current and fishery-specific data on bycatch rates and bycatch species composition, it might be worth considering the use of a gear-based scheme similar to that used in Factor 4.1 and Appendix 3 as a default scoring scheme for this criterion with modification when such data are available. The bycatch score can be assigned based on a) gear type, b) bycatch composition based on target species and areas of operation (a modified version of the bycatch matrix in Appendix 3), and c) total impact score by the scale of the fishery. A base score computed from these sub-scores can then be modified based on Factor 3.2, either within Criteria 2 or separately in Criteria 3;

• Given that Criteria 2 is to assess the impacts of the fishery on other species, I do not think there is a need for distinction between discards and retained bycatch (whether or not the bycatch is retained or discarded dead, the impact on the stock of the bycaught species is the same). Therefore, I believe that with a scoring scheme that already includes bycatch rate (as it is currently defined in these assessments) in its evaluation, having further modifications based on discard rate (Factor 2.4) are redundant. While I agree with the need to assess the impact of a fishery on any bait species it uses, I think this should be kept separate from the bycatch issue and be done in Criteria 4 (Impact on the Ecosystem). This assessment could be done based on the fishery’s reliance on a baitfish fishery (e.g. milkfish fishery for bait in some tuna fisheries).

Criterion 3: Management Effectiveness

• In Appendix 4, the emphasis in the evaluation seems to be on output control measures (i.e. TAC based) while input control measures (e.g., spatial and temporal closures, gear restriction and effort limits) are relegated to the management of data-poor fisheries. I am concerned whether this bias is appropriate;

• Given that Factor 3.1 is specifically for the management of target species (i.e., the species being assessed), I believe scoring on Recovery of Species of Concern should be restricted to the target species. Concerns over other target/retained species should be addressed in Factor 3.2;

• I didn’t see any mention of derelict/damaged gear management (in terms of mitigating gear loss while fishing and also in terms of port-side measures to recycle/dispose of ruined or old gear when it is no longer safe to use at sea). I know ghost fishing is mentioned in the current definition of ‘bycatch’, however trying to quantify the magnitude of ghost fishing associated with a certain fleet can be very challenging. Having a specific ghost fishing/ gear management component included in Factor 3.2 might be a more practical way of incorporating this management concern;

• The weighting of Factors 3.1 and 3.2 should be based on the scale of bycatch in the fishery rather than the geometric mean of the two scores. A low score in Factor 3.2 could be the result of bycatch being a lower priority issue in a relatively low bycatch (but not bycatch-free) fishery.

Criterion 4: Ecosystem-based Fisheries Management

• As mentioned above, perhaps incorporate bait usage into this Criterion (Factor 4.3) instead of under Criterion 2;

• Given that EBFM is a more national strategy (rather than fishery-specific), it might be worth exploring if some of the policy indicators included in OHI could be applied to this section. Not sure, just a thought.

Conservation and Policy

Biases in Legal Listing under Canadian EndangeredSpecies Legislation

Introduction

In many countries wild species canbe granted legal protection whenthey are deemed at risk of extinc-tion or extirpation. Protection is thefirst step in a process of recoveringthe species and can reverse declin-ing population trajectories by reduc-ing human-caused threats (Male &Bean 2005). Canada was the first ma-jor industrialized nation to ratify theRio Convention on Biological Diver-sity (CBD 1992). As part of its re-sponsibilities under the convention(CBD 1992, section 8k), the Cana-dian government passed the Speciesat Risk Act (Bill C-5, or SARA 2002)in December 2002 to offer some le-gal protection and a framework forrecovery of species at risk (reviewedin VanderZwaag & Hutchings 2005).Here, we explore taxonomic and ge-ographic factors that influence thelegal listing process and commenton particular institutional factors thatmay lie behind these patterns.

In contrast to the U.S. EndangeredSpecies Act of 1973 (ESA 1973),but broadly similar to Australia’s En-dangered Species Act (Woinarski &Fisher 1999), legal listing of speciesin Canada is a two-stage process. TheCommittee on the Status of Endan-gered Wildlife in Canada (COSEWIC),an independent scientific advisorybody that has assessed the status ofspecies since 1977, was establishedunder SARA as the entity responsi-ble for the assessment of species at

Paper submitted September 21, 2006; revisedmanuscript accepted December 24, 2006.

risk. On receipt of a species assess-ment by COSEWIC, the federal gov-ernment can accept the assessmentof COSEWIC and add the species tothe legal list, decide not to add thespecies to the list, or refer the assess-ment back to COSEWIC for furtherconsideration. Although reasons fornot listing and for species referralshave to be made public, the decisionis entirely a discretionary one. Forcomparison, there is only one overtstage in the United States where theresponsible government agency maylegally list species in response to pub-lic proposals.

Listing under SARA sets in motiona number of regulations. Individualsof listed species are protected, andthere are steep fines for killing themor destroying their “residences” with-out a permit (SARA, section 97). Fol-lowing listing, the government mustmake public first a recovery strat-egy and then an action (or manage-ment) plan for recovery. The recov-ery strategy determines the techni-cal and biological feasibility for recov-ery (SARA, section 40), whereas theaction plan details socioeconomictrade-offs and implementation strate-gies (SARA, section 49). If legal list-ing is denied, or if the species is re-ferred back to COSEWIC, there are nolegal obligations for recovery actionand the species obtains no federallylegislated protection under SARA.

Methods

We obtained the decisions made from2004-2006 by the Canadian Ministryof Environment to list species as

at risk of extinction (SARA PublicRegistry, www.sararegistry.gc.ca;see Supplementary Material). TheCOSEWIC proposes all species, sub-species, or populations (hereafterspecies) that it ranks as imperiled(extinct, extirpated, endangered,threatened, and special concern) forlisting. In 2000 COSEWIC adopteda modified version of World Con-servation Union quantitative criteriaas a basis for species assessment(COSEWIC 2004a). These criteriaincorporate information on pop-ulation decline, abundance, andgeographical range. We recordedthe conservation rank, taxonomiccategory, and provinces or territo-ries of occurrence for each speciesassessed by COSEWIC. The tax-onomic categories were marinemammal, terrestrial mammal, marinefish, freshwater fish, bird, amphibian,reptile, arthropod, mollusk, vascularplant, moss, and lichen. Marine fishincluded wholly and partially marinespecies (e.g., anadromous salmonids,green sturgeon [Acipenser mediro-stris]). We combined amphibians andreptiles into “herpetofauna”; arthro-pods and mollusks into “inverte-brates”; and vascular plants, mosses,and lichens into “plants” (for a totalof eight categories). For mammalsand fishes we determined whetherspecies were harvested by examin-ing COSEWIC species status reports(www.sararegistry.gc.ca). Speciestaken only as by-catch were recordedas nonharvested.

When SARA took effect in 2003,all 233 species previously assessedby COSEWIC as imperiled were

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Mooers et al. Biases in Legal Listing 573

Table 1. Number of imperiled species, subspecies, and populations proposed for legal listing in Canada and the listing fates under the CanadianSpecies at Risk Act, 2004–2006.

Groupa Proposed Listed Not listedb Listed (%)

Herpetofauna 26 26 0 100Birds 12 12 0 100Plants 71 69 2 (1) 97Invertebrates 19 17 2 (2) 89Freshwater fish 17 13 4 (2) 76Marine mammals 19 13 6 (1) 68Terrestrial mammals 11 5 6 45Marine fish 11 1 10 (3) 9Total 186 156 30 (9) 84

aSee text for details of groupings.bNumbers of species referred back to COSEWIC for further consideration are in parentheses.

automatically included on the legallist. Since then, the Government de-cides whether to list each species in-dividually. Our analysis is restrictedto the 186 species recommendedfor listing by COSEWIC since 2003,up to August 2006 (Government ofCanada 2006). Species that were ei-ther denied listing or referred backto COSEWIC were scored as not listed(21 denied, 9 referred back). (The fulllist is available; see SupplementaryMaterial.) We compared the propor-tion of listed and not listed speciesacross the eight taxonomic cate-gories and across geographic regionsand harvest status with standard testsof association ( JMP v. 6.0).

Results

The proportions of species listed dif-fered among taxonomic groups (Ta-ble 1; test of marginal homogeneity:n = 186, G2 = 69.2, p < 0.0001, df =7). Post hoc tests based on 95% cred-ible intervals of proportions showedthat more plants and herpetofauna,but fewer marine fish and terrestrialmammals, were accepted onto the le-gal list (Table 1). Harvested fish andmammals were far less likely to belisted than nonharvested ones. Only5 of 29 harvested fish and mammalswere listed, whereas 27 of 29 nonhar-vested fish and mammals were listed(n = 58, G2 = 38.57, p < 0.0001, df =1).

None of the 10 species occurringin Nunavut was listed, and north-

ern species in general (i.e., occur-ring north of 60◦ in Nunavut, theYukon, the Northwest Territories, orthe Arctic Ocean) were less likely(5/18) to be listed than were non-northern species (151/168; n = 186,G2 = 33.0, p < 0.0001, df = 1; Fig. 1).This difference was driven primar-ily by mammals: only 17% of north-ern mammals were listed (2/12) com-pared with 88% of non-northernmammals (15/17). None of the resultschanged when we excluded speciesthat were referred back to COSEWIC(analyses not shown).

Discussion

The primary correlate of taxonomicgroup was governmental jurisdiction.In most of southern Canada (below60o N), terrestrial plants and ani-mals are the responsibility of theprovinces. Responsibility for north-ern plants and terrestrial animals isshared among the territories, wildlifemanagement boards, and the federalgovernment. Marine species are thesole responsibility of the federal gov-ernment. Marine fish were almost al-ways denied listing, as were many im-periled northern species. In addition,although we did not identify fresh-water fish as being significantly lesslikely to be listed than other taxo-nomic groups, 22% of them were notlisted, which is substantially higherthan the average of 3% that were notlisted for plants, birds, herpetofauna,and invertebrates; the federal govern-

ment has joint jurisdiction over fresh-water fish.

We outline two factors that seemto have contributed to the taxonomicand geographic biases in legal list-ing decisions under Canada’s endan-gered species legislation. The first isa reluctance by wildlife managementboards and the Department of Fish-eries and Oceans to accept the addi-tional stewardship responsibilities re-quired by SARA. The second pertainsto deficiencies in the cost–benefitanalyses that precede the legal listingdecisions.

Wildlife management boards(WMBs), whose responsibilities areprimarily in the north, are involved inthe legal listing decisions for speciesin their jurisdictions. The statedgovernmental reason for not listingnorthern mammals is to allow forfurther consultation with WMBs,notably the Nunavut WMB (Govern-ment of Canada, 2006). The SARAprovides no timelines for such post-assessment consultations, and theWMBs are consulted by COSEWICbefore each assessment. The result-ing delays may elevate the extinctionrisk for some species. For example,Bourdages et al. (2002) estimatedthat current harvesting rates of theeastern Hudson Bay beluga whale(Delphinapterus leucas) popula-tion, which was denied listing, willlead to its extinction within 10–15years. These consultations alsoaffect populations outside Nunavutinsofar as Nunavut-based delayshave prevented the listing of the

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574 Biases in Legal Listing Mooers et al.

Figure 1. Percentage of imperiled species occurring in each region of Canada that were granted legal protectionunder the Species at Risk Act in Canada, 2004–2006 (northern regions, black; NF/LB, Newfoundland andLabrador; NW Territories, Northwest Territories).

wolverine (Gulo gulo), grizzly bear(Ursus arctos), and polar bear (U.maritimus) elsewhere in Canada.

Although not made explicit inSARA (Government of Canada 2003),the legal listing process includessomething called a regulatory impactanalysis (RIAS). The RIASs are cost–benefit analyses undertaken by thefederal government, promulgated un-der the Financial Administration Act(PCO 1999). A RIAS typically takeplace during the 9 months that im-mediately precede a listing decision,prior to the development of any formof recovery strategy or action plan.This timing is clearly problematic;A RIAS will be unable to provide acomplete assessment of the costs andbenefits of species recovery, poten-tially biasing the perception of the so-cioeconomic impact of a listing deci-sion. In addition, these cost–benefitanalyses are not subject to externalreview.

A major deficiency of RIAS is thatrelatively little effort is expended inestimating benefits. By one estimate,half of all RIASs examined do notquantify benefits at all (EARG 1997,section 4.1). Quantifying the bene-fits of recovering species is obviouslycritical if cost–benefit analyses are tobe taken seriously. Globally, the lossof habitats and populations depriveshumanity of goods and services with

a net worth of perhaps US$250 bil-lion annually (Balmford et al. 2002).In Canada failure to take meaning-ful action to reduce fishing mortal-ity on Newfoundland’s northern At-lantic cod (Gadus morhua) in thelate 1980s led to a subsequent expen-diture of C$2–C$3 billion for incomesupport, buy outs of commercial fish-ing licenses, and training for alterna-tive employment for displaced fishersand processors (CEC 2001).

Benefits to listing must also accou-nt for nonuse economic values. Theseare the benefits of conservation thatcan be reflected in part by the valuethat society holds for the preserva-tion of species. One such value istermed “willingness to pay” (e.g., Tis-dell et al. 2005). For example, the list-ing of the porbeagle shark (Lamnanasus) may exact costs to the fishingindustry of C$865,000–C$1.82 mil-lion over 20 years (DFO 2006). Thesecosts would be readily exceeded bythe nonconsumptive value of the por-beagle if willingness to pay exceededpennies per Canadian.

In short, species are most likelynot listed because current benefitsof status quo activities (e.g., fishing)are quantified as a matter of course,whereas the benefits of recovery arenot. The single marine (anadromous)fish that was listed, the green stur-geon, has a “disagreeable taste” and is

not fished commercially (COSEWIC2004b). Of the freshwater fish pro-posed for listing by COSEWIC, onlythe white sturgeon (Acipenser trans-montanus) has substantial commer-cial value (Froese & Pauly 2006), andthe government chose to excludepopulations valuable to sport fishersfrom protection under SARA (Gov-ernment of Canada 2006).

The Canadian government’s failureto list species such as Newfound-land’s northern cod, despite a declineestimated to exceed 99% (Hutchings& Reynolds 2004), sends an omi-nous but revealing signal to society.More worrisome, however, may bethe 2006 decision not to list the por-beagle shark. The species has experi-enced a near-90% reduction in abun-dance (COSEWIC 2004c) and its life-history traits place it at high riskof extinction (Reynolds et al. 2005).By the government’s own reckoning,only one or two fishers are economi-cally dependent on porbeagle. Undera worst-case scenario, listing mighthave led to a loss of eight jobs andan economic reduction of 2% to asingle community (DFO 2006). Weinterpret the government’s decisionnot to add the endangered porbea-gle to the legal list, despite the min-imal economic losses that might en-sue, to reflect an implicit policy notto list any marine fish perceived to

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Mooers et al. Biases in Legal Listing 575

be of economic value, no matter howsmall.

Conclusion

Canada’s Species at Risk Act is a di-rect response to the international en-deavor to better steward natural re-sources. Nevertheless, if an imper-iled species is not listed by the fed-eral government, any debate on thecosts and benefits of changing its tra-jectory to potential extinction mayonly take place in the narrow contextof in-house analyses conducted underthe purview of a financial regulatoryact. We document here a pattern con-sistent with bias against marine andnorthern species in legal listing. InJune 2008 a parliamentary review ofthe act must take place (SARA, sec-tion 129). The biases we have identi-fied should be given due scrutiny atthat time. Biodiversity conservationwould be best served by strict, trans-parent, legislated timelines for all as-pects of the listing process followingreceipt by the Minister of the Envi-ronment of the status assessments un-dertaken by COSEWIC. We also rec-ommend that, within the RIAS frame-work, SARA require that the full costsof extinction and the full benefits ofrecovery be quantified in externallyreviewed reports so that they can befairly weighed against the impacts oflegal protection.

Acknowledgments

We thank S. Elgie and G.G.E. Scud-der for past discussions on endan-gered species legislation and S. Otto,I. Rounthwaite, and three anonymousreviewers for commenting on previ-ous versions of this manuscript. Weare supported in our research byNSERC Canada (A.O.M., M.F.-B., J.H.)and Environment Canada (L.P.).

Supplementary Material

The listing fates of imperiled speciespresented to the Canadian Govern-ment from 2004 through 2006 are

available in conjunction with theon line version of this article fromhttp://www.blackwell-synergy.com(Appendix S1).

A.Ø. Mooers,∗† L.R. Prugh,‡ M.Festa-Bianchet,§ and J.A. Hutchings∗∗

∗Simon Fraser University, 8888 UniversityDrive, Burnaby, BC, Canada V5A 1S6; emailamooers@sfu.ca†Institute for Advanced Study, Berlin, Germany‡University of British Columbia, Vancouver,BC, Canada§Universite de Sherbrooke, Sherbrooke, PQ,Canada∗∗Dalhousie University, Halifax, NS, Canada

Literature Cited

Balmford, A. et al. 2002. Economic reasons forconserving wild nature. Science 297:950–953.

Bourdages, H., V. Lesage, M. O. Hammill, andB. de March. 2002. Impact of harvesting onpopulation trends of beluga in eastern Hud-son Bay. Research document 2002/036. De-partment of Fisheries and Oceans Canada,Canadian Science Advisory Secretariat, Ot-tawa.

CBD (Convention on Biological Diversity).1992. The convention on biological diver-sity. Secretariat of the CBD, U. N. Environ-ment Programme, Montreal. Available fromwww.biodiv.org/convention/convention.shtml (accessed July 2006)

CEC (Commission For Environmental Cooper-ation). 2001. The North American mosaic:a state of the environment report. CEC,Montreal.

COSEWIC (Commitee on the Status of Wildlifein Canada). 2004a. COSEWIC’s assessmentprocess and criteria. Committee on the Sta-tus of Endangered Wildlife in Canada, Ot-tawa. Available from www.cosewic.gc.ca/pdf/assessment process e.pdf (accessedJaunuary 2007).

COSEWIC (Commitee on the Status of Wildlifein Canada). 2004b. COSEWIC assessmentand update status report on the greensturgeon Acipenser medirostris in Canada.Committee on the Status of EndangeredWildlife in Canada, Ottawa.

COSEWIC (Commitee on the Status of Wildlifein Canada). 2004c. COSEWIC assessmentand status report on the porbegale sharkLamna nasus in Canada. Committee onthe Status of Endangered Wildlife inCanada, Ottawa.

DFO (Department of Fisheries and Oceans).2006. Potential socio-economic implica-tions of adding porbeagle shark to the list ofwildlife species at risk in the Species at RiskAct (SARA). Policy and Economics Branch,Maritimes Region, Department of Fisheriesand Oceans, Dartmouth, Canada. Avail-

able from www.dfo-mpo.gc.ca/species-especes/porbeagle/index e.htm (accessedJune 2006).

EARG (Evaluation, Audit and Review Group).1997. Regulatory reform through regula-tory impact analysis: the Canadian experi-ence. Managing better, number 14. Evalua-tion, Audit and Review Group, Public Af-fairs Branch, Treasury Board of Canada Sec-retariat, Ottawa. Available from www.tbs-sct.gc.ca/pubs pol/dcgpubs/manbetseries/VOL14-1 e.asp (accessed July 2006).

ESA (Endangered Species Act of 1973).2004. U.S. Code16, chap. 35. Availablefrom www.fws.gov/endangered/esa.html(accessed July 2006).

Froese, R., and D. Pauly, editors, 2006. Fish-Base. Version 05/2006. Available fromwww.fishbase.org (accessed May 2006).

Government of Canada. 2003. Species AtRisk Act, a guide. Government of Canada,Ottawa. Available from www.sararegistry.gc.ca/the act/SARA guide oct03 e.pdf (ac-cessed January 2007).

Government of Canada. 2006. Order amend-ing schedules 1 to 3 to the Species At RiskAct. Canada Gazette 140 (18). Availablefrom canadagazette.gc.ca/partII/2006/20060906/html/sor189-e.html (accessedSeptember 2006).

Hutchings, J. A., and J. D. Reynolds. 2004.Marine fish population collapses: conse-quences for recovery and extinction risk.BioScience 54:297–309.

Male, T. D., and M. J. Bean. 2005. Measuringprogress in U.S. endangered species con-servation. Ecology Letters 8:986–992.

PCO (Privy Council Office). 1999. Govern-ment of Canada regulatory policy. Avail-able from www.pco-bcp.gc.ca/raoics-srdc/default.asp?Language=E&Page=Publications&Sub=GovernmentofCanadaRegula (ac-cessed September 2006).

Reynolds, J. D., N. K. Dulvy, N. B. Goodwin,and J. A. Hutchings. 2005. Biology of extinc-tion risk in marine fishes. Proceedings ofthe Royal Society of London (B) 272:2337–2344.

SARA (Species At Risk Act). 2002. Bill C-5, Anact respecting the protection of wildlifespecies at risk in Canada. Available fromwww.parl.gc.ca/37/2/parlbus/chambus/house/bills/government/C-5/C-5 4/C-5TOCE.html (accessed January 2007).

Tisdell, C., C. Wilson, and H. S. Nantha. 2005.Policies for saving a rare Australian glider:economics and ecology. Biological Conser-vation 123:237–248.

VanderZwaag, D. L., and J. A. Hutchings. 2005.Canada’s marine species at risk: scienceand law at the helm, but a sea of uncer-tainty. Ocean Development and Interna-tional Law 36:219–259.

Woinarski, J. C. Z., and A. Fisher. 1999. TheAustralian Endangered Species ProtectionAct 1992. Conservation Biology 13:959–962.

Conservation BiologyVolume 21, No. 3, June 2007

CANADA’S SPECIES AT RISK ACT:

IMPLEMENTATIONAT A SNAIL’S PACE

APRIL 2009

RECOVERY STRATEGIES – The primary causeof decline for 84% of species at risk in Canada is habitat loss.4 Inorder to maintain, protect and restore the habitat that is needed bya species, that habitat must first be identified. The Act requires thatcritical habitat — the habitat needed by a species to survive or recover—must be identified, to the extent possible based on the best availableinformation, in a recovery strategy under SARA.

LISTING – In order for the Act to apply to a species, it must first be listed for protection. This involves a two-step process.First, a species must be assessed by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), an independentscientific body that assesses the status of species and designates them as extirpated, endangered, threatened, special concern,or not at risk. Second, for a species designated in one of the “at risk” categories, the federal government must decide whetherto add it to the formal list under SARA. If it does not decide within nine months, the Minister of Environment must list it.

In practice, however, the government has failed to meet this nine-month timeline. Although there is no provision for it in the Act,the government has created an “extended listing process” that has resulted in limbo for many species. At least 53 species atrisk are likely continuing to decline while government takes between 17 and 29 months (i.e. two to three times longer thanwhat is legally allowable) to determine whether or not to add them to the list, and for some species the delays are indefinite. Suchdelays can jeopardize the recovery of a species that is already on the brink of extinction.

In addition, there appears a clear bias against listing certain kinds ofspecies. Overall, COSEWIC has assessed 551 species as extirpated,endangered, threatened, or special concern. The number of species listedunder SARA is 449. Chances of eventual listing have been fairly good formost species - with the exception of species found in the oceans or innorthern Canada. Since 2004, only 35% of marine fish assessed byCOSEWIC as “at risk” have been added to the list and nomarine fish havebeen listed as endangered or threatened, which would automatically grantthem protection against harm. Ten of the 23 species whose listing hasbeen outright rejected are found in the north.2

PEARY CARIBOU

Peary caribou, found only in Canada’s Arctic,have undergone a precipitous decline ofapproximately 80% since the 1980s. Theyare threatened by climate change and thepotential for industrial development in theirhabitat.3 COSEWIC assessed the Peary cari-bou as endangered in May 2004, yet in July2005, the government decided not to list thespecies and instead put it into an “extendedconsultation” limbo. A listing decision onPeary caribou is still pending.

THE BANFF SPRINGS SNAIL IS A TINY MOLLUSC FOUND ONLY IN HOT SPRINGSprotected within Banff National Park. It has the dubious distinction of being the only speciesin Canada for which the six-year-old Species at Risk Act (SARA) has been fully implemented.

SARA was enacted in 2002 to prevent Canadian wildlife and plants from becoming extinctor extirpated and to provide for their recovery.1 There are three federal authorities responsiblefor implementing the Act: Environment Canada, Fisheries and Oceans Canada, and the ParksCanada Agency.

A mandatory five-year review of the Act’s effectiveness has been initiated by Parliament.Four of Canada’s leading not for-profit environmental organizations working to protect Canada’sbiodiversity -- the David Suzuki Foundation, Ecojustice, Environmental Defence, and NatureCanada -- have collaborated to highlight the major shortcomings of the Act and to gradeits implementation.

Our analysis examines each major stage of species protection, according to the elements setout in the Act itself: Listing, Recovery Strategies, Action Planning, Habitat Protection, andthe Safety Net.

Peary Caribou Source: istockphoto.com

The Banff Spring SnailPhoto Credit: © Mark and Leslie Degner / www.markandlesliedegner.com

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BOREAL WOODLAND CARIBOU

The government recently engaged a team of18 independent scientists, supported byadditional experts and a management team atEnvironment Canada, to develop a scientificreview for the identification of critical habitatfor the boreal population of woodland caribou.In April, a robust, science-based review wasreleased that recommended critical habitatfor the caribou. The science in this report shouldprovide government, industry and conserva-tionists with the tools needed to ensure thepersistence of boreal woodland cariboupopulations in Canada.

However, not only have recovery strategies often failed to identify criticalhabitat when it was possible to do so, the majority of recovery strategieshave been delayed, ignoring legal timelines. Recovery strategies aredue for 282 species, but have only been completed for 99 species.And out of those recovery strategies that have been released, only 21%identify at least some part of the species’ critical habitat.5

ACTION PLANNING – Action plans are where de-cisions are made about the most cost-effective means for achievingrecovery of a species, based on the recovery strategy. Unfortunately,as the Act is written, there is no legal deadline for the completion ofaction plans. Although recovery strategies must identify a timeline foraction planning, these timelines are not legally binding and most arenot met. Thirteen action plans are past the timelines promised in thecorresponding recovery strategies.

The development of an action plan is especially important in thosecases where the recovery strategy did not identify any critical habitat.However, of the 78 species for which final recovery strategies failed toidentify critical habitat, none has a completed action plan. To date, infact, there is only one completed action plan: for the Banff Springs snail,a species located entirely within a National Park.

HABITAT PROTECTION – The ultimate measureof the effectiveness of SARA for most species is whether the habitatthat the species needs to survive and recover is actually being protectedon the ground. Once critical habitat is identified in a recovery strategyor action plan, the Minister must determine whether that habitat is pro-tected. If it isn’t, the Minister must order its protection if it is on federallands or waters, and in any case must report on it and on the steps takento protect it.

Of the 21 species that have had critical habitat identified to date, inonly two cases has SARA been used to protect critical habitat thatwasn’t already in a federal protected area. And these two, the northernand southern resident killer whales, only received this protection asa result of legal action taken by the environmental community. Further,despite the Minister’s obligation to do so, no reports on steps takento protect critical habitat have been issued.

KIDNEYSHELL

The kidneyshell is a freshwater mussel thathad a historic range throughout south-westernOntario. Its range has been severely reduced.The federal recovery strategy for the kidneyshellfailed to identify the kidneyshell’s criticalhabitat. This means the habitat this speciesrequires to survive is not protected under SARA.However, recovery and survival habitat for thekidneyshell were identified in a separate provin-cial recovery strategy for the Ausable River.Despite referencing the provincial recoverystrategy, the kidneyshell recovery strategyignores its results!

Kidneyshell Mussel Source: Darby Creek Association /www.darbycreeks.org

Boreal Woodland Caribou Photo credit: Bruce Petersen /Ontario Nature

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SAFETY NET – As the national law to protect species, onewould think that SARA covers all of Canada. In fact, however, habitatprotection is mandatory only for aquatic species and on federal lands(such as post offices, military bases and much of the Territories).

This is unfortunate, as species do not recognize political boundaries.However, the Act is equipped with what is called a “safety net” thatallows the federal government to order SARA’s protections to applyto other species on other lands. SARA requires the Minister to recom-mend such an order to protect a species and/or the habitat upon whichit depends if he or she is of the opinion that a province is failing toeffectively do so. To date however, despite the fact that several provincesdon’t even have species at risk legislation, no Minister has ever madesuch a recommendation, and the government has never passed suchan order.

CONCLUSION – The shortcomings of SARA’s implemen-tation highlighted in this report are directly impacting species at riskin Canada. Discouragingly, after six years of SARA implementation,only two species have had critical habitat protected outside of existingprotected areas, and these only in response to a court case! In theabsence of habitat protection for at-risk species, habitat degradationcontinues and we can expect Canadian species to continue to decline.As it stands now, the implementation of SARA is failing at its keygoals of providing for the survival and recovery of species at risk andthe protection of their critical habitat. The five-year review creates anopportunity for government to change its ways and to start effectivelyharnessing the Act’s potential to protect species and their habitats.Government must take strong actions to ensure that our imperilledspecies are given a fighting chance at survival and to truly facilitatespecies recovery.

COVER PHOTOGRAPH of theBANFF SPRINGS SNAIL:

Photo Credit: © Mark and Leslie Degner /www.markandlesliedegner.com

SPOTTED OWL

The spotted owl is a perfect example of aninstance in which the safety net should havebeen applied. In 2004, conservation organi-zations submitted a legal petition asking theMinister of Environment to employ the safetynet to prevent the northern spotted owl fromgoing extinct in Canada. At the time, there wereless than 20 spotted owls documented in thewild. However, the Minister was of the opinionthat the species did not face an immediatethreat to its survival despite ongoing loggingpressures in its habitat; the government failedto intervene and now the spotted owl is beingextirpated in the wild. Most recently, only sevennorthern spotted owls have been counted inthe wild.

Northern Spotted Owl Photo Sharon Toochin

ENDNOTES

1 Species at Risk Act preamble.

2 See Mooers, A. O., L. R. Prugh, M. Fest-Bianchetand J. A. Hutchings. 2997. Biases in legal listingunder Canadian Endangered Species Legislation.Conservation Biology 21(3): 572-575.

3 COSEWIC 2004. COSEWIC assessment andupdate status report on the Peary caribou Rangifertarandus pearyi and the barren-ground caribou Rangifertarandus groenlandicus (Dolphin and Union population)in Canada. Committee on the Status of EndangeredWildlife in Canada. Ottawa, pp. 46 and 54.

4 Venter, O., N. N. Brodeur, L. Nemiroff, B. Belland,I. J. Dolinsek and J. W. A. Grant. 2006. Threats toendangered species in Canada. Bioscience 56(11):903 – 910.

5 See Status Report of the Commissioner of theEnvironment and Sustainable Development to theHouse of Commons, March 2008.

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Mooers, A.O., Prugh, L.R., Festa-Bianchet, M. and Hutchings, J.A. 2007. Biases in legal listing under Canadian Endangered Species Legislation. Conservation Biology. 21(3): 572-575.

- Harvested fish and mammals much less likely to be listed under SARA than non-harvested ones (5 out of 29 versus 27 out of 29).

- “Marine species were almost always denied listing” - Two possible reasons why species are not listed:

o Reluctance by wildlife management boards and DFO to accept additional stewardship responsibilities required by SARA

o Deficiencies in the cost-benefit analyses that precede the legal listing decisions - “Species are most likely not listed because current benefits of status quo activities e.g. fishing

are quantified as a matter of course, whereas the benefits of recovery are not. The single marine fish that was listed, the green sturgeon, has a “disagreeable taste” and is not fished commercially. Of the freshwater fish proposed for listing by COSEWIC, only the white sturgeon has substantial commercial value and the government chose to exclude populations valuable to sports fishers from protection under SARA”

- “We document here a pattern consistent with bias against marine and northern species in legal listing”.

Canada’s Species at Risk Act: Implementation at a snail’s pace. 2009.

- If species is at risk under COSEWIC, federal government must decide within 9 months whether to list in SARA. If no decision, then automatically has to bel isted.

- Government does not meet 9 month timelines as government has created extended listing process.

- Government takes 17-29 months to determine whether or not to list - For some species, listing delay is indefinite - Since 2004, only 35% of marine fish assessed by COSEWIC as “at risk” have been added to the

list and no marine fish have been listed as endangered or threatened, which would automatically grant them protection against harm.

Hutchings, J.A. and Festa-Bianchet, M. 2009. Canadian species at risk (2006-2008) with particular emphasis on fishes. Environ. Rev. 17: 53-65.

- Since proclamation of SARA, fishes have represented the taxonomic group least likely to be included on Canada’s legal list of species at risk

- Canadian government has yet to list any of the endangered or threatened marine fishes assessed as being at risk since the passage of SARA

- “The primary reason for not listing threatened and endangered marine fishes would appear to be based on the perception that the short-term socioeconomic costs to cusiness, industry, and consumers of listing exceed the longer-term socioeconomic benefits of listing”

- Unexpected and unfortunate weakness of SARA: the ability of the federal government to postpone almost indefinitely listing decisions

Druce, C.D. 2012. Assessing the viability of the Species At Risk Act in managing commercial exploitation and recovery of threatened and endangered marine fish in Canada.

- A total of five marine fish are currently listed under SARA as threatened or endangered, three of which were automatically listed when SARA was proclaimed in 2003 (Government of Canada, No Date (a)). Since SARA’s proclamation, 11 of the 13 marine fish that COSEWIC has assessed as threatened or endangered have been declined for SARA listing (Table 1) (Government of Canada, No Date (a)). For all of these species declined for listing, potential negative socio-economic impacts resulting from the automatic application of SARA’s general prohibitions were cited as a primary reason for denying listing (Government of Canada, 2005; 2006a; 2006b; 2010; 2011). These 11 non-listed species remain under the purview of the Fisheries Act (RSC 1985, cF-14), the primary legislative tool DFO uses to manage and regulate commercial fishing activity.

- Both Mooers et al. (2009) and Findlay et al. (2009) have criticized SARA listing trends, suggesting that the federal government is inappropriately prioritizing socio-economic considerations over ecological concerns in denying listing specifically to species of commercial importance.