Blog of law articles

(BY HUGO)

Just a quick post to point to an ongoing debate that originated in California water management about earmarking the extinction of some species as acceptable. Here's a post from Professor Holly Doremus on Legal Planet that provides context and references on the origin of the debate.

This debate raises fascinating issues at the theoretical level about the anthropocentric nature of development and conservation but also at the advocacy or political level about picking the most effective path of action to achieve conservation goals.

Under the federal Species at Risk Act (SARA) in Canada, triage is implicitly accepted, as appears from a previous post. In 2010, the federal government decided not to list the Winter Skate for the following reasons:

«The prohibitions under section 32 of the Species at Risk Act (“the Act”), which come into effect after listing a species as threatened or endangered, require that any activity that would result in killing, harming, harassing, capturing or taking the listed species be stopped immediately. This would include fishing activity, if the Winter Skate is caught as bycatch while listed as threatened or endangered, as is the case for the Southern Gulf of St. Lawrence and Eastern Scotian Shelf populations, which have been assessed as endangered species and threatened species respectively. The negative socio-economic impacts of listing these populations would be significant and the population trajectory of the species is unlikely to be reversed as a result of the listing. The closure of commercial fisheries in Northwest Atlantic Fisheries Organization areas 4T and 4VW, which would be necessary as a result of listing these populations, would result in millions of dollars in lost revenue annually, as well as significant direct and indirect job losses.»

Thus, under SARA, triage is principally effected at listing level (arguably, triage can also occur during the development of recovery strategies, but this would presumably be less significant since the principal prohibitions to affect the species provided by SARA would already be operational). A brief review of SARA's provisions shows that identification and listing of protected species is subjected to a detailed process formally guided by scientific inputs but ultimately subordinated to political discretion.

A committee of experts in disciplines such as conservation biology, population dynamics or genetics, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), must assess the status of each wildlife species it considers to be at risk, with priority given to the species more likely to become extinct, in order to classify it as extirpated, endangered, threatened, of special concern or not currently at risk and, as part of the assessment, identify existing and potential threats to the species. (Here are COSEWIC criteria and guidelines for the status assessment of wildlife species)

The COSEWIC must then provide the reasoned assessment of a species status to the federal Minister of the Environment, who then makes a recommendation to the Governor in Council to add a wildlife species to the list of species at risk, to reclassify a listed wildlife species, or to remove a listed wildlife species. The Governor in Council may not accept the recommendation and decide not to add the species to the list of species at risk. All decisions not to add a species to the list despite assessments made by the COSEWIC appear to have been taken under the government in power since 2005 for reasons that include economic costs, absence of data as well as sectoral opposition.

Regarding triage under SARA, one of the main points that may block debate in Canada is that the phenomenon is not explicitly recognized by the legal framework (the preamble and the purpose of SARA) but nevertheless occurs in a completely discretionary space within the regime.