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Canada's University Run FACULTE DES ETUDES SUPERIEURES FACULTY of GRADUATE and ET POSTOCTORALES U Ottawa POSDOCTORAL STUDIES

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Canada's University Run FACULTE DES ETUDES SUPERIEURES FACULTY of GRADUATE and ET POSTOCTORALES U Ottawa POSDOCTORAL STUDIES mn u Ottawa L'Universitd canadienne Canada's university run FACULTE DES ETUDES SUPERIEURES FACULTY OF GRADUATE AND ET POSTOCTORALES U Ottawa POSDOCTORAL STUDIES I.'University amadienne Canada's university Catherine Hofmann AUTEUR DE LA THESE / AUTHOR OF THESIS LL.M. GRADE/DEGREE Faculty of Law FACULTE, ECOLE, DEPARTEMENT / FACULTY, SCHOOL, DEPARTMENT Keeping Up With the Feds: The Provincial Response to Canada's Species at Risk Act TITRE DE LA THESE / TITLE OF THESIS Stewart Elgie DIRECTEUR (DIRECTRICE) DE LA THESE / THESIS SUPERVISOR CO-DIRECTEUR (CO-DIRECTRICE) DE LA THESE / THESIS CO-SUPERVISOR EXAMINATEURS (EXAMINATRICES) DE LA THESE/THESIS EXAMINERS Jamie Benidickson Heather McLeod-Kilmurray Yves LeBouthillier Gary W. Slater Le Doyen de la Faculte des etudes superieures et postdoctorales / Dean of the Faculty of Graduate and Postdoctoral Studies Keeping Up With the Feds: The Provincial Response to Canada's Species at Risk Act By Catherine Hofmann B. Arts (Honours) The University of Alberta, 1988 B. Laws, The University of Toronto, 1991 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES THE UNIVERSITY OF OTTAWA April, 2008 © Catherine Hofmann, Ottawa, Canada, 2008 Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-48605-4 Our file Notre reference ISBN: 978-0-494-48605-4 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par Plntemet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission. In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these. While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada Abstract This thesis examines how the threat of federal intrusion into provincial jurisdiction over natural resource management which accompanied the development and passage of Canada's Species at Risk Act (SARA) has impacted provincial legislation and policies aimed at protecting endangered species. SARA's safety net provisions constitute the mechanism by which Ottawa may act unilaterally to provide effective protection for species at risk and their habitats where a provincial or territorial government fails to do so. The federal government's historical reluctance to use similar clauses in other environmental legislation suggests that the true value of the safety net is the degree to which threat alone is sufficient to motivate provincial action. A review of the statutory and policy changes undertaken by the provinces reveals the extent to which the development of SARA and its safety net has spurred provincial governments to provide more effective protection for endangered species. ii Table of Contents Abstract ii Table of Contents iii Chief Seattle's Message v CHAPTER 1 Introduction and Thesis Outline 1 Introduction and Background Information 1 Thesis Outline 5 CHAPTER 2 Development and Passage of the Species at Risk Act (SARA) 9 Constitutional Jurisdiction for the Protection of Species at Risk 9 Legislative History of SARA 16 The Accord for the Protection of Species at Risk 17 Bill C-65 18 Bill C-33 22 SARA 25 Listing and Protection from Harm 26 Direct Harm Safety Net 27 Habitat Protection 29 Critical Habitat Safety Net 31 Criteria for Effective Protection 33 The Safety Net as a Policy Instrument 3 5 Cooperative and Coercive Policy Instruments 37 CHAPTER 3 Safety Nets in Other Federal Environmental Legislation 47 Canada Water Act 48 Clean Air Act 55 Transportation of Dangerous Goods Act (1982) 61 Canadian Environmental Protection Act 66 Provincial Regulatory Equivalency 67 Equivalency Agreement with Alberta 72 Harmonization 73 International Air and Water Pollution 74 Conclusion 76 Canadian Environmental Assessment Act 77 Provincial Legislative Response 81 Harmonization 84 Transboundary Provisions 86 Conclusion 88 CHAPTER 4 Provincial Species at Risk Legislation 92 British Columbia 93 Alberta 98 Saskatchewan 102 Manitoba 107 Ontario 110 in Quebec 117 New Brunswick 121 Nova Scotia 124 Prince Edward Island 126 Newfoundland 128 Yukon Territories 131 Northwest Territories 133 Nunavut 135 Conclusion 137 Bibliography 155 CHIEF SEATTLE'S Message (adapted by the Grade 5 class of Mulgrave School, 2006/07) They want to buy THIS land. But how can you BUY or SELL the EARTH or SKY? The idea is so strange. If we do not own the FRESHNESS of the air, The SPARKLE of the water, The POWER of the land, Then WE ask, How can you buy or sell... .. every part of this spirited land is sacred to us Like the air to our lungs EVERY shimmering pine needle," EVERY crisp shore EVERY haunting mist in the dark woods, EVERY wind-tossed meadow EVERY humming insect. ALL these things are the pounding HEART of the EARTH They are ALL holy in our memory and experience We are part of the EARTH and it is part of US. The sticky sap which flows through the trees Is like the blood that flows through our veins. The enchanting flowers are our sisters. The swift deer, the soaring eagle, the mighty bear these are our brothers. The rocky crests, the moist dew in the field, the cool mountain streams. We all belong to the same family. The glistening water that trickles through streams is not just WATER IT IS the crimson BLOOD of elders past. The land is an expression of us Each glossy reflection in the water tells of events and memories in our lives. v The rivers are our family, our parents. Feeding our hunger. Quenching our thirst. They help our canoes flow across to other lands, But not for nothing in return. We must reciprocate with love and respect. The air is our spirit and brings us life, Our first breath is taken from our ancestor's last sigh. Man follows the wind Sweetened by the flowers of our land Our meadow Our Earth The Earth Our Mother Keeper of the elements, What befalls her, befalls us This we know The earth does not belong to man, Man belongs to earth. All things are connected like the blood that unites us all. Man did not weave the web of life, He is merely a strand. Whatever is done to the web, Is done to himself. One thing we know, Our God, is your God. The earth is precious to Him, to harm the earth is to heap contempt on its creator. Your destiny is our mystery. What will happen When the buffalo are slaughtered? When the wild horses are tamed? When the great eagle no longer soars? What will happen When the meadows are covered with concrete giants? When views of ripe hills are blotted with talking wires? When the crystal waters turn black? What will happen when the beauty of the land is gone? Where will the forest be? Gone. Where will the raven be? Gone. Where will nature's spirit be? Gone. VI When we have moved on, And time has passed, What will be left of our spirit? Its memory a cloud moving across the prairie... What will remain? Will shores and forests be no more? What of our people will be remembered? We love this earth as a newborn loves its mother's heartbeat. We beg you to love this land as we have loved it And care for it as we have cared for it. Hold in your mind the memory of the land as it is today, And preserve that memory for all children. Love this land as God loves us all. As we are part of the land, You too are part of the land. This earth is precious to us. It should also precious to you. One thing that is for certain, There is only one earth; Those who share it can never truly be apart. We are all brothers and sisters after all vn CHAPTER 1 Introduction and Thesis Outline Introduction Resting under an endless prairie sky along the Saskatchewan Montana border, are over 500 square kilometers of relatively undisturbed mixed grasslands. They are located in Grasslands National Park and are home to a wide variety of rare plant and animal species. On any given day, it is possible to see a robin-sized Sage Thrasher nesting in a small shrub, or a grey and buff mountain plover calling to its mate. Mormon Metalmark and Monarch butterflies feed along the Frenchman River. Peregrine Falcons soar above the prairie landscape, and black tailed prairie dogs bark out warnings of the danger overhead.
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