September 29, 2004 The Honourable Stéphane Dion Minister of Environment House of Commons Parliament Buildings Ottawa, Ontario K1A 0A6 Dear Minister Dion: RE: Emergency Order pursuant to the Species at Risk Act Congratulations on your appointment to the Environment portfolio. I write on behalf of the Petitioners of the first petition under the federal Species At Risk Act which called upon your predecessor, Minister David Anderson, to recommend that Cabinet recommend an Emergency Order to protect the Northern Spotted Owl in British Columbia. We write to advise you that we are still awaiting a final decision on our Petition, and to provide you additional background on the matter. Significance of the Spotted Owl Petition for SARA Although supportive of the cooperative approach envisioned by the Species At Risk Act (SARA), our clients, since SARA s passage, have expressed concern regarding the Act s limited jurisdiction. We believe that SARA curtails the federal government s proper role, and authority, to protect all of Canada s endangered species by limiting its non-discretionary prohibitions to areas of federal jurisdiction, and, as a result, fails to appropriately address the risk to all of Canada s endangered species. Your predecessor, Minister Anderson and his officials in the Canadian Wildlife Service, asserted from the bill s inception that safety-net measures would be implemented if needed but that cooperative measures would be attempted first. They have deflected criticisms of the limited mandatory scope of the Act by assuring Canadians that the Act will protect species in every part of Canada. The Spotted Owl is the most endangered bird in Canada. It faces imminent threats to its survival and recovery. Yet logging in Spotted Owl habitat continues unabated, and recent data produced by the British Columbia government continues to reveal a marked decline in Spotted Owl populations. The current inaction by the federal government stands in stark contrast to the public position espoused by the federal government on the scope and effect of SARA 1
Our clients believe that the Spotted Owl will become extinct in Canada unless the federal government immediately intervenes. They also believe the same fate will befall many other species at risk that inhabit areas of non-federal jurisdiction. The Spotted Owl is a litmus test of SARA, demonstrating whether the federal government will exercise the discretionary measures in SARA that are needed to protect endangered species within provincial jurisdiction. Background on the Emergency Order Petition Section 80 of the Species At Risk Act (SARA) states: 80 (1) The Governor in Council may, on the recommendation of the competent minister, make an emergency order to provide for the protection of a listed species of wildlife; 80 (2) The competent minister must make the recommendation if he or she is of the opinion that the species faces imminent threats to its survival or recovery; 80 (4) The emergency order may b) ii) A) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates and B) include provisions requiring the doing of things that protect the species and provisions prohibiting activities that may adversely affect the species and that habitat. Our petition to Minister Anderson was submitted in February, 2004. It detailed the current status of the spotted owl, noting that: The Spotted Owl is the most endangered bird in Canada, with only 14 adult owls recorded in 2003; The Spotted Owl population declined by 67% between 1992 and 2002; The British Columbia government has acknowledged logging of old-growth habitat as the principal cause of the Spotted Owl s decline, yet approved logging in at least three, and as many as six, of the 10 areas in which the owl was detected in 2003; The British Columbia government is the largest logger of Spotted Owl habitat and has ignored the voluntary halt to logging by British Columbia s largest logging companies; The British Columbia government policy expressly prioritizes logging industry needs over the threat to the Spotted Owl posed by logging its habitat; 2
The British Columbia government ignored recommendations of government biologists who called for immediate protection for Spotted Owl habitat; The petition, pursuant to Section 80, requested: permanent protection of all remaining high-quality Spotted Owl habitat; a temporary logging moratorium on all lower-quality habitat and the surrounding forest until critical owl habitat is protected; and immediate funding to ensure recovery of the owl in Canada. A follow-up letter was sent to Minister Anderson on March 25 th, detailing evidence of new logging activity in Spotted Owl habitat. We received a letter of response from Minister Anderson on May 10, 2004. In the letter, Minister Anderson acknowledged the precarious status of the owl and stated: If a collaborative approach does not soon result in the Province taking actions to protect the Northern Spotted Owl, I will be prepared to consider making a recommendation under Section 80 of SARA. We replied to Minister Anderson s May 10 th letter with a detailed description of the weaknesses of the provincial efforts to protect the Spotted Owl. We also requested that Minister Anderson s office provide us with parameters for their definition of soon, but, as the federal election was called shortly after our letter was received, our correspondence ended. Continuing failure to protect the Spotted Owl in British Columbia Further to our original petition, our letter of May 5 th, 2004 and our letter of June 21, 2004, we write to advise you of the continuing failure of the British Columbia government to take actions to protect the Spotted Owl. On July 28 th and 29 th, representatives of the Western Canada Wilderness Committee attended at the offices of British Columbia Timber Sales (BCTS). BCTS is an agency of the British Columbia government and, as set out in our report, Logging to Extinction, attached to our Petition, the largest logger of Spotted Owl habitat in BC. The purpose of the visit was to investigate the current state of BCTS logging. After reviewing all current and proposed logging in or within 500 metres from designated Spotted Owl habitat, we confirmed that logging by BCTS continues unabated. In other words, we could determine no change in behaviour on the part of the BC government to reflect your government s desire to see that they act voluntarily to protect the Spotted Owl. (As was also discussed in the Petition, it is notable that the 3
second largest logging of habitat, International Forest Products Ltd., has voluntarily withdrawn its operations as has the 8 th largest logger Canadian Forest Products Ltd.). Although BCTS is the largest logger of Spotted Owl habitat, it is by no means the only logger. In correspondence both attached to the Petition and correspondence subsequently forwarded, we advised your predecessor of fears of continued logging in Spotted Owl habitat. We now have further information originating within BC s environment ministry, the Ministry of Water, Land and Air Protection (MWLAP) obtained pursuant to British Columbia s Freedom of Information and Protection of Privacy Act, that our concerns about continued logging are shared by government officials. For example, we have obtained a copy of a document prepared by a MWLAP biologist and forwarded to the chair of the province s Spotted Owl Recovery Team. Entitled Concerns Regarding Development (Forest Harvest) within LTAC s and within Spotted Owl Habitat in Currently Unprotected Areas, the document outlines ongoing logging in critical habitat and states: And further: Of greater significance, the example cited above (and detailed in the appendices) is symptomatic of a far more widespread concern regarding responsible forest resources management in the range of the owl in BC. In light of the SORT s draft recovery strategy objectives and interim recommendations for this species, it seems counterproductive to further limit or reduce recovery options for this species. (emphasis added) During my survey work I observed significant forest harvest activity within SRMZ s and proposed LTAC s (still awaiting cabinet decision) within the last ten remaining known active owl sites in BC. In the past month alone I have noted continued or recent harvest at (or nearby) ALL five of the active sites I visited. In consideration of the proximity of these developments to active owl areas I m very concerned that the harvest of these areas may further detriment the well-being of the resident spotted owls at these sites and may further limit recovery options for these species. (emphasis in original) Our clients believe that, if at any time the BC government has assured your ministry that they were taking steps to address logging in Spotted Owl habitat, such assurances were not in good faith. 4
Failure to invoke discretionary laws As stated in our letter of June 21, 2004, the British Columbia government passed the Wildlife Amendment Act, 2004 ostensibly to strengthen the Wildlife Act and meet the provincial government s responsibility to protect species at risk. While the Act contains prohibitions against harming species at risk, designating species that will be protected by the Act is at the discretion of the Lieutenant Governor in Council. To date, no regulations have been passed listing the Spotted Owl. The BC government, to our clients knowledge, evidences no intention of so doing. Next steps: federal leadership is needed SARA s role to facilitate recovery planning is clear. Given the right circumstances, SARA potentially enables habitat protection through recovery and action plans, including focusing on habitat protection at an ecosystem level, as the federal government will have the opportunity to do upon the implementation of action plans. Were there time to wait for recovery plans to identify critical habitat, and for your office to support the critical habitat identification and implement protection through an action plan, then the Spotted Owl might benefit from such an ecosystem-based habitat protection action plan. But, as our Petition and further correspondence demonstrates, the Spotted Owl decline is an emergency and its low population cannot survive a voluntary process undertaken by a provincial government that talks and logs. Simply put, immediate federal intervention is required to protect the Spotted Owl. By protecting the Spotted Owl you will ensure the credibility of the federal government regarding its intention to apply SARA in a meaningful manner. Alternatively, further delay sends a strong message to provincial governments and the public that the safety net measures in the Species At Risk Act are mere words. Conclusion Our clients believe that they have provided clear evidence of imminent threat to the survival and recovery of the Spotted Owl in BC. If, however, you believe we have misstated our position and/or that we have not provided sufficient information to enable you to act, we would appreciate the opportunity to meet with you so that we can address matters to your satisfaction. 5
Sincerely, Devon page Staff Lawyer On behalf of: The Sierra Club of Canada ForestEthics The David Suzuki Foundation Western Canada Wilderness Committee 6