Submission to
the Standing Committee on Environment
and Sustainable Development
concerning
Bill C-5, An Act respecting the protection of wildlife species at risk in Canada

prepared by
Stephen Best
Founding Director

Species at risk legislation is an implicit admission of failures caused by the effects of past government policies. And, while the recognition of these failures is commendable, most remedies afforded in such legislation are a poor means to correct the failures, let alone reverse their effects. Canada's species at risk — such as the Swift Fox, the Beluga Whale, the Piping Plover — are our "canaries in the coal mine." The real solution to making the coal mine safe is cleaning up the poison gases that are killing the "canary," not ignoring the gas and opting for heroic measures that at best might keep the canary on life support. Yet "saving the canary" is exactly the underlying premise of all species at risk legislation, including Bill C-5.

Environment Voters (EV) applauds the efforts of the members of the Standing Committee on Environment and Sustainable Development (Committee) and the many individuals and organizations who have appeared before the Committee to help enact good species at risk legislation in Canada.

However, after a review of similar legislation in the United States and Canada and in contrast to most witnesses from the environmental protection community, EV cannot agree that species at risk legislation in general or as conceived in Bill C-5 will offer much help, if any, to species at risk.

To satisfy election promises and to some extent convention obligations, federal species at risk legislation in the mold of Bill C-5 will no doubt be passed by Parliament, eventually. With this inevitability in mind, EV offers this submission hoping that it will help the Committee by describing some of the problems intrinsic to species at risk legislation and by making a few suggestions that might help reduce the chance of Canada's imminent species at risk legislation suffering the short-comings of similar laws.

Notwithstanding our loss of faith in the value of legislation like Bill C-5, EV is deeply committed to the government implementing strong environmental protection programs that might help prevent the slide of species towards ecological insignificance or extinction and aid in their recovery, but more importantly, we are committed to the passage and enforcement of legislation that will some day give Canadians an environment that will prevent species from being put at risk in the first instance.

Environment Voters is a Canadian environmental protection organization that — through election campaigning — works to influence the political and electoral factors that inform environmental public policy.

Public policy decisions are always made with intense consideration of their potential effects on electoral fortunes. This is both the strength and weakness of our democracy and electoral system. This necessary political consideration helps prevent policies that might be onerous or harmful to the electorate. This is good. But, it also makes it difficult to implement policies critical to our health and well-being if they are judged accurately by policy makers and their political strategists to have no significant impact on electoral fortunes. This is bad. The environment and certainly species at risk legislation falls into the latter category. As a result and as can be seen from the government's environmental policies over the last eight years, the environment — the "keystone" issue — has been allowed to deteriorate dangerously.

EV's mission is to increase significantly the political and electoral importance of the government-of-the-day's environmental protection record and policies. EV holds governing parties directly accountable for their environmental protection record during elections — the only way there is to hold a government accountable in a democracy. EV works to provide a political benefit to the governing party and its incumbents if, during their mandate, they have made measurable progress protecting the environment. Conversely, EV tries to exact a political cost if the environment has deteriorated due to government inaction, or worse due to the implementation of policies that are antithetical to a clean, healthy environment. "Benefit" and "cost" are measured in votes won or lost during elections. EV does this by campaigning in electoral districts where a small shift in the vote — less than 4% — can decide the outcome, and by using the most sophisticated political campaign techniques available.

EV is not aligned with any political party nor any ideology along the political spectrum. EV is interested only in public policy as it effects making progress on environmental protection. Knowing there are no permanent enemies and no permanent friends in politics, EV willingly makes common cause with any parties or politicians who can help make progress on the environmental protection agenda.

EV's definition of "progress" is neither unreasonably ambitious nor unachievable. Most indices of environmental performance — as crude as they may be — suggest that since 1970 there has been a general decline in environmental quality in Canada and worldwide of about 40%, slightly more than 1% per year. And, despite some good localized progress on specific issues, this general decline continues unabated. This trend is reversible. A general, modest improvement in environmental quality of 1% annually can be achieved and accommodated in Canada with thoughtful public policies, reasonable legislation, responsible enforcement, and appropriate funding. No innovation is required. There are "off the shelf" solutions available for every environmental problem facing Canada today. Most can be found in Canada, the rest are being used in countries comparable to Canada.

The environment is the "keystone" issue. A clean, healthy environment, rich in diverse wildlife and natural habitats, ecologically enhanced — rather than degraded — by human activity is the fundamental criterion for our personal well-being, social justice, and economic growth. A toxic and dying environment is eventually fatal to all social and economic hopes and ambitions. This is a fact, not an opinion. Evidence for it abounds. Nevertheless, this axiom is still not appreciated by some, and ignored for short-term self-interest by others.

Like so many issues that once exercised politicians and legislatures in the past, a healthy environment — like fundamental human rights — ought to be beyond politics in Canada, but it is not. The problems of a degraded environment are well known. The solutions are readily available and can be incorporated responsibly without undue social and economic disruptions. Canada's politicians have the authority to implement the solutions. But, they are not doing it. In Canada, we do not have an environmental problem. We have a political problem. EV works on the political problem.

Over the course of the Committee's hearings, the nuances of Bill C5 will be discussed — subsection by subsection, word by word — with diverse witnesses who have scientific, economic, legal, and cultural expertise. Environment Voters is a political organization. As all public policy decisions are inherently political — and are merely informed by other factors such as science and economics — it is hoped that our political perspective of Bill C-5 will assist the Committee.

EV is acutely aware that many well-informed people are working hard pursuing sound species at risk legislation for Canada, which seems laudable. But, such legislation — no matter how well-conceived, even when it imposes clear obligations on a government — is no guarantee that significant benefits, if any, will accrue to wildlife.

A good case can be made that endangered species protection legislation does more harm than good. Species at risk legislation:

• by its very nature, is often too little too late,
• focuses on the victims of a degraded environment not the causes, diverting efforts and resources away from dealing with the broader environmental problems that cause endangerment,
• suffers from non-ecological considerations (political, cultural, social, economic, etc.) often being used to determine which species are selected for recovery strategies at the expense of the survival of others,
• usually favors animals over plants in implementation, and
• is usually poorly applied, achieving very little and certainly not enough to offset new species becoming at risk.

Ontario, by most accounts, has good endangered species legislation, but simply resists using it. This was highlighted in the most recent report of the Ontario Environmental Commissioner, Gord Miller,

The United States Endangered Species Act (ESA) is often held by environmental protection groups as model legislation, a success to be followed. But this can only be argued if the standard for "success" is so low as to be environmentally insignificant, does not demand even a reasonable number of species recovering, and does not require them recovering to a level where they might resume a viable ecological role.

Problems with the ESA abound. Less than 1% of all species ever listed on the ESA have recovered. Non-governmental organizations (NGOs) spend considerable time in court attempting to force various state and federal authorities to apply the ESA. Even when the NGOs succeed in court, governments routinely apply the ESA only to the minimum extent necessary to satisfy the demands of the NGOs' hard-won legal decision, rather than in a manner that would actually protect the species at risk.

Dr. Peter J. Bryant at the School of Biological Sciences, University of California, continues the criticism of the ESA:

As for Bill C-5, it entrenches the problems that plague all such legislation and is, furthermore, so replete with procedural and consultative requirements that an unwilling government could use it to bring all efforts to protect species at risk to a standstill, while quite plausibly appearing and claiming to be working hard in the other direction. The lesson that should be drawn from current species at risk laws is that any efficacy they might have does not flow from their legal elegance and scientific completeness, but solely from the willingness of governments to use them effectively.

The federal government has always had the means to protect species at risk, aid in their recovery, and, indeed, implement sound environmental policies to prevent species from becoming threatened or endangered in the first instance. To underline this point: even in the absence of specific federal species at risk legislation, the federal government is now involved in programs to help endangered or threatened species recover. Environment Canada's modest RENEW program is one example. Obviously, the government's efforts have been insufficient to counter the overall trend towards endangerment. However, the failure to protect species at risk adequately is a consequence of deliberate political decisions, not of legislative impediments.

The remedies in Bill C-5 to help species at risk, such as the Jefferson Salamander or the Hooded Warbler, are triggered when they are promoted to the List of Wildlife Species at Risk. Lists such as these form the basis of most endangered species protection legislation. Endangered species lists are subject to incompleteness, bias, and error. Such lists are crude things which can contribute more to ignorance than enlightenment.

The very presence of such lists misleads the public and many politicians into believing that scientists have a good understanding of species at risk. The truth is that scientists are not even aware of how many species there are. They have a very poor understanding of the wild species they are aware of, an even poorer understanding of species at risk, and almost no understanding of how they all interact in dynamic ecosystems.

In the public mind, the lists leave the false impression that they represent the total picture of the problem of loss of biodiversity. The truth is they grossly understate the problem of endangerment because they are so incomplete. According to the federal government's Wild Species 2000: The General Status of Species in Canada, there are over 70,000 wild species in Canada, and at least that many not yet described. Only 1,600 species made it to the Wild Species 2000 list, about 1.15%.

Inevitably, the lists are biased towards species that are research subjects, but most species are not being studied. Species that are studied tend to have some economic or recreational interest or some unique attribute attractive to researchers. Species that do not pique interest or are difficult and expensive to study are often ignored. The environmental or ecological importance of species listed is often of peripheral importance. There are no insects on the Wild Species 2000 list, for example, yet many of them play a key role in pollination.

Determining a species' status and getting it listed so that it might qualify for help is an expensive, arduous task. For non-governmental organizations that depend on the public for support, this often precludes working for the recovery of species the public does not find attractive — pandas sell more calendars than hagfish.

As they are lists of species, they obscure the critical fact that no species lives in isolation. In Bill C-5 there are two definitions of "habitat," one for "other wildlife species" and one for "aquatic species," no doubt because of the Fisheries Act. The definition of "habitat" for "aquatic species" is preferred as each species is a member of a larger ecological community, and is a component of "habitat" made up of myriad other species. Indeed, an endangered or threatened species may be part of the habitat of another species at risk. Consider an endangered bird nesting in an endangered tree. There is no clear demarcation between "habitat," if it is assumed to include other biota, and "species" as Bill C5 and other such legislation explicitly imply.

Long before a species is sufficiently threatened to be named to the List of Wildlife Species at Risk and receive protection, it will likely have become ecologically extinct, no longer playing an ecologically significant role. The ecological damage that caused the species to become at risk has been done, is difficult to repair, and will prevent or impede species recovery. This threatens all the other species that, in turn, depended on it for their survival.

Endangered species lists are the Catch 22 of environmental protection. The IUCN Red List, COSEWIC's Canadian Species at Risk, soon Bill C-5's List of Wildlife Species at Risk, and all the other lists undermine broad prophylactic policies that might insure that species like the Harp Seal do not become candidates for such lists. The accepted rationale for inaction is the fatal question, "Is it on the endangered species list?" If not, the convenient conclusion is that there is no problem, when nothing could be further from the truth.

A final issue concerning lists is that the compilers and their parent organizations are often influenced not just by science (which is always incomplete), but also by funding concerns and personal ambition when it comes to listing politically or economically sensitive species. The debate behind the Atlantic Cod being rated by COSEWIC as a species of Special Concern, rather than Threatened or even Endangered, is instructive.

Bill C-5, like most species at risk protection legislation, depends on species specific Recovery Strategies. All these strategies presuppose that species recovery is a numbers game rather than an ecological one. According to COSEWIC, the Wood Bison is no longer considered endangered, merely threatened, in Canada. And, it is often used as an example of a successful effort to save a species from extinction. The vast North American prairie was sustained because of the ecological influence of bison. Today, this species plays no significant ecological role. Their numbers are too low and always will be. They are ecologically extinct. The Wood Bison today is, for all practical purposes, a domestic animal, a product of game farming pretending to be wildlife management.

The Recovery Strategies as conceived in Bill C-5 would simply perpetuate this counter-productive strategy of numbers-based, rather than ecological, species recovery.

By way of example, in August 2000, the Minister of the Environment announced a $500,000 grant "over the next three years to assist with the recovery efforts for the Vancouver Island Marmot." The Vancouver Island Marmot is so endangered that only 57 were counted in the wild in 1999, down from 71 in '98, and 102 in '97. No amount of money and no scientific effort will ever restore the Vancouver Island Marmot to ecological significance. It is not even known — nor possible to ever discover — what their ecological significance was or even what the population size of the marmot might naturally be.

In its Geo-2000 report, the United Nations Environment Programme observed,

This observation applies equally to Canada. It is likely that all of Canada's endangered species — those that have made the COSEWIC list and those that have yet to be identified or studied enough to qualify — are, like the Vancouver Island Marmot, beyond ecological recovery. We will have to come terms with the fact that for many species in Canada, protection is coming too late.

The first "Main Point" in the 2000 Report of the Commissioner of the Environment and Sustainable Development made by Richard Smith, the Acting Commissioner is,

It is easy and often convenient to confuse activity with achievement; sometimes it is inadvertent and sometimes deliberate. This is particularly true when it concerns environmental protection. It is a confusion too often suffered and perpetrated by both governmental and non-governmental organizations to the detriment of the environment. The Government's recent environmental protection activity, taking the form of announcements and funding commitments, while a pleasant departure from years of destructive budgets, will have no measurable effect on improving the quality of the Canadian environment, simply because few of these recent expenditures are based on well-conceived plans designed to meet clear, measurable goals. And, even where clear environmental goals have been discussed — as in Kyoto, for example — Canada seems to prefer achieving them through chicanery, rather than honest effort and effective programs that would inevitably cause inconvenience to politically relevant economic sectors.

Bill C5 is solidly entrenched in this tradition. Nonetheless, in the hands of a government determined to protect species at risk, Bill C5 might have some use even in its present form. Conversely, for governments which might determine that protecting species at risk is politically inconvenient, Bill C5 contains all the "cost-effective measures" needed to either pretend action or avoid it, and total control over what species will be deemed "threatened" or "endangered," the best scientific advice notwithstanding.

The 1999-2000 Annual Report of RENEW (Recovery of Nationally Endangered Wildlife) is sobering. RENEW is the federal government's actual current commitment to "rescuing species from extinction," and nothing indicates that it is not how the government would like see Bill C-5 implemented. If the government plans for Bill C-5 to maintain the rate of progress being made by the RENEW program, there is little hope for species at risk in Canada.

Good election campaign management always begins with identifying the landscape: the "list of givens" that cannot be changed. Before considering what suggestions about Bill-C5 might be offered to the Committee, Environment Voters also began with the "list of givens."

• The drive to pass Bill-C5 is political not environmental. Bill C-5's roots are in a much re-iterated 1993 election promise. Failure to pass endangered species legislation has become a touchstone of not only the government's poor environmental record, but also its trustworthiness.
• The government has no need of Bill-C5 to protect species at risk.
• Bill C-5 will have no impact on the fate of Canada's species at risk because it is redundant.
• Bill C-5 will change neither the nature nor the scope of current programs to protect species at risk in Canada.
• No matter how "perfect" Bill C-5 might be, its efficacy will always be dependent on government will to protect species at risk.
• The task of protecting species at risk using the means set out in Bill C-5 is hopeless. There are too many species at risk in Canada for even the best intentioned government to deal with any but a few. Even if a future government chose to mount a "Marshall Plan" to recover just 10% of Canada's species at risk, there are not enough researchers, wildlife managers, base knowledge, or time to accomplish the task using the means set out in Bill C-5.
• As the government has "difficulty turning [environmental protection commitments] into action" it can be expected that most species at risk will continue to suffer unless there is a sea change in the political environment.

Suggestions that might address some of Bill C-5's many species and habitat protection short-comings are superfluous. There is no "perfect" act that a government determined to avoid action cannot thwart. The two techniques now used are downloading and withholding funds. And, for a government determined to protect species at risk, there is no impediment in the current version of Bill C-5 it cannot easily overcome.

However, should the government choose to use Bill C-5 to help species at risk, there are some changes that might make the task easier politically.

Giving direct political control over species promoted to the List of Wildlife Species at Risk may have seemed an astute choice when Bill C-5 was drafted, but it is a political mistake.

In all species at risk decisions, triage is involved because so few species at risk are valid candidates for protection and recovery. If the Governor in Council makes the final triage decisions, as Bill C-5 requires, the government cannot win politically. What is the political answer to why super funding went for the Vancouver Island Marmot in the Minister of the Environment's backyard, rather than for the Gaspé Shrew, another endemic species, this one of "Special Concern" rather than "Endangered" for which there is still time to help? If scientists make the decisions, the government cannot lose politically, because the decision is above partisan and electoral politics and made for the best ecological reasons. (In practice, scientists have their own decision-making problems driven by self-interest, but standard "peer-review" procedures can provide some checks and balances.)

Protecting species at risk — or not — is a political decision. Which species at risk should be protected, and how, are scientific decisions. Mixing environmental science and politics is always bad for both the environment and politicians, not to mention the scientists. The Committee might want to review the Atlantic Cod crisis to better understand this. As devastating as the Atlantic Cod crisis is, Bill C-5 suggests that its drafters learned few lessons — environmental or political — from it.

Political control over the List of Wildlife Species at Risk will inevitably mean that species selected for inclusion will be cherry-picked so that funds going to recovery strategies will serve political, rather than environmental, ends. This has been the US experience and the trend is apparent in recent Environment Canada grants to southern British Columbia, the Minister of the Environment's political base. The inevitable political influence over Bill C-5 funds — like Human Resources Development Canada grants and the late Canada Jobs Fund — will insure continuous criticism and censure particularly during elections and certainly by EV.

Legitimate government concern about expenditures can be controlled through the overall budget. This will also encourage scientists to develop programs that will provide the most "bang for the buck," compel them to make the difficult but necessary triage decisions, and help avoid funds going to futile showcase or politically expedient projects. To address legitimate concerns about recovery strategies that may be untenable politically or economically, a Bill C-5 variant of a "notwithstanding clause" can be added.

Bill C-5 could also be improved both politically and in its actual potential to aid the recovery of species at risk by including an independent "peer review" of both the recovery strategies and their progress. This should not be left to the scientists, wildlife managers, or government agencies called upon to develop and implement the recovery strategies, all of whom have a vested interest in reporting "progress." A valid criticism of the HRDC and Canada Jobs grants was a general lack of measurable goals and independent audits to see if the goals were being met. This problem abounds in wildlife and environmental protection programs as scientists, government agencies, and environmental protection groups compete for funding; Bill C-5 provides no means to address it. As mentioned above, activity is too often confused with achievement.

By providing for an independent scientific review of both the recovery strategies, the goals in the strategies, and the implementation of the strategies any blame for failure will not fall on the government. And, credit for successes will accrue to the government that enacted the legislation. The government can also perform the critical role as the responsible, disinterested overseer of the program: an oversight that Bill C-5 currently does not provide. The government cannot serve this role effectively if it is one of the active participants.

It is a purely political decision whether or not the environmental problem of species at risk in Canada will be adequately addressed by the government. And, it is a decision that is informed first by electoral ambitions, not environmental protection needs, nor science. It's an old lament, but it's still too bad that threatened species don't vote.

Environment Voters' campaign decisions are informed by the measurable progress the government makes — or fails to make — on environmental protection. EV intends to be active in the next federal election and hopes that its campaigns will be based on improvements in not only the status of a few species at risk, but also improvements in the quality of Canada's overall environment, and the government's conduct at international environmental protection fora.

EV applauds the efforts of all those working for strong protections for and measures to aid in the recovery of species at risk, but what matters is not the fate of Bill C-5, but positive measurable results on the ground.