Order Amending Schedule 1 to the Species at Risk Act: SOR/2020-219

Canada Gazette, Part II, Volume 154, Number 22

Registration
SOR/2020-219 October 6, 2020

SPECIES AT RISK ACT

P.C. 2020-771 October 2, 2020

Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsection 27(1) of the Species at Risk Act^{footnote a}, makes the annexed Order Amending Schedule 1 to the Species at Risk Act.

Order Amending Schedule 1 to the Species at Risk Act

Amendments

1 Part 2 of Schedule 1 to the Species at Risk Act^{footnote 1} is amended by adding the following in alphabetical order under the heading “Fish”:

• Shiner, Carmine (Notropis percobromus)
  Tête carminée
• Smelt, Rainbow (Osmerus mordax) Lake Utopia large-bodied population
  Éperlan arc-en-ciel population d’individus de grande taille du lac Utopia
• Smelt, Rainbow (Osmerus mordax) Lake Utopia small-bodied population
  Éperlan arc-en-ciel population d’individus de petite taille du lac Utopia

2 Part 3 of Schedule 1 to the Act is amended by striking out the following under the heading “Fish”:

• Shiner, Carmine (Notropis percobromus)
  Tête carminée
• Smelt, Rainbow (Osmerus mordax) Lake Utopia large-bodied population
  Éperlan arc-en-ciel population d’individus de grande taille du lac Utopia
• Smelt, Rainbow (Osmerus mordax) Lake Utopia small-bodied population
  Éperlan arc-en-ciel population d’individus de petite taille du lac Utopia

Coming into Force

3 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Executive summary

Issues

The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) completed reassessments of the status of three aquatic wildlife species: Carmine Shiner, Rainbow Smelt (Lake Utopia large-bodied population) and Rainbow Smelt (Lake Utopia small-bodied population). These three species are currently listed as threatened on the List of Wildlife Species at Risk (Schedule 1) of the Species at Risk Act (SARA), but have been reassessed by COSEWIC and designated as endangered.

Background

SARA was passed by Parliament in 2002. The purpose of SARA is to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are threatened, endangered or extirpated as a result of human activity and to manage species of special concern to prevent them from becoming threatened or endangered.

SARA is a key tool in the ongoing work to protect species at risk. SARA is considered one of the most important tools in the conservation of Canada’s biological diversity because it provides for the protection, survival and recovery of listed wildlife species at risk. It complements other laws and programs of Canada’s federal, provincial and territorial governments, and supports the efforts of conservation organizations and partners working to protect Canadian wildlife and habitat.

Wildlife species considered to be at risk in Canada are assessed and classified by COSEWIC, an independent arm’s-length scientific advisory body. COSEWIC conducts species assessments based on the best available scientific evidence, as well as community and traditional Indigenous knowledge.

SARA provides the following definitions for classifications of wildlife species at risk:

• Extirpated — “extirpated species” means a wildlife species that no longer exists in the wild in Canada, but exists elsewhere in the wild;
• Endangered — “endangered species” means a wildlife species that is facing imminent extirpation or extinction;
• Threatened — “threatened species” means a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction; and
• Special concern — “species of special concern” means a wildlife species that may become a threatened or an endangered species because of a combination of biological characteristics and identified threats.

When COSEWIC completes an assessment of the status of a wildlife species, it provides the Minister of the Environment with a copy of the assessment and the reasons for the assessment. On receiving a copy of a COSEWIC assessment, the Minister of the Environment must, within 90 days, include in the Public Registry a report on how the Minister intends to respond to the assessment and, to the extent possible, provide timelines for action.

As the Minister responsible for the overall administration of SARA, the Minister of the Environment provides listing recommendations to the Governor in Council (GIC) with respect to all species. However, prior to making a recommendation to the GIC with respect to aquatic species, the Minister of the Environment is required by SARA to consult the Minister of Fisheries and Oceans as the competent minister for aquatic species.^{footnote 2} The Minister of Fisheries and Oceans then provides the Minister of the Environment with advice as to whether or not to recommend that a species be added to Schedule 1 of SARA (or, in circumstances where COSEWIC has changed the classification of a species that is already on Schedule 1, advice as to whether or not to recommend that the List be amended according to the COSEWIC reclassification), or whether the matter should be referred back to COSEWIC for further information or consideration.

In developing listing advice to the Minister of the Environment in relation to each aquatic species, the Minister of Fisheries and Oceans considers the following as appropriate:

• the purposes of SARA;
• the species status assessment made by COSEWIC;
• other available information regarding the status and threats to the species;
• the Fisheries and Oceans Canada Species at Risk Act Listing Policy and Directive for “Do Not List” Advice (DFO Listing Policy), which includes the Default Listing Position, which is that Fisheries and Oceans Canada (DFO) will advise the Minister of the Environment to recommend to the GIC to list species in accordance with COSEWIC’s assessment unless there is a compelling rationale not to do so;
• the results of consultations with the public, provinces and territories, impacted Indigenous groups and organizations, and wildlife management boards, and with any other person or organization that the competent minister considers appropriate;
• the socio-economic (costs and benefits), biological and corporate impacts; and
• where the Minister of the Environment is also a competent minister for the species (that is, when individuals of the species are in or on federal lands administered by the Parks Canada Agency), the advice of the Minister of the Environment, as Minister responsible for the Parks Canada Agency, is sought.

The 2017 policy on the timeline for amendments to Schedule 1 of the Species at Risk Act (Listing Timelines Policy) provides direction on when decisions on species assessed as at risk by COSEWIC will be made concerning their addition to, or reclassification on, Schedule 1. The Listing Timelines Policy calls for the Minister of the Environment to seek to obtain a final GIC decision on whether or not to amend the List within 24 months from the date that COSEWIC provides a species status assessment to the Minister^{footnote 3} for aquatic species with straightforward consultation requirements.

Carmine Shiner in Canada

The Carmine Shiner is a small, slender, elongated minnow found only in Canada in the Whitemouth and Winnipeg river systems in eastern Manitoba. The species was assessed by COSEWIC under the name “Rosyface Shiner” and designated as threatened in 2001, and was included on Schedule 1 in 2003 as threatened when SARA came into force. In 2005, the name was changed to “Carmine Shiner” on Schedule 1. The 2006 COSEWIC assessment maintained the threatened status. The status was re-examined by COSEWIC in April 2018, and the species was designated as endangered. This assessment was included in the COSEWIC Annual Report 2017 to 2018.

Rainbow Smelt (Lake Utopia large-bodied population) and Rainbow Smelt (Lake Utopia small-bodied population) in Canada

The Rainbow Smelt (Lake Utopia large-bodied population) and Rainbow Smelt (Lake Utopia small-bodied population) are a genetically different pair of Rainbow Smelt found only in Lake Utopia in southwestern New Brunswick. The large-bodied population ranges in size from 15–25 cm in length and the small-bodied population ranges in size from 8–15 cm in length. The Rainbow Smelt (Lake Utopia large-bodied population) was assessed by COSEWIC and designated as threatened in 2008 and listed as such on Schedule 1 in August 2019. The Rainbow Smelt (Lake Utopia small-bodied population) was assessed by COSEWIC as threatened in 2000 and was included as such on Schedule 1 in 2003 when SARA came into force. COSEWIC re-examined and confirmed the status of Rainbow Smelt (Lake Utopia small-bodied population) in 2008. The status of both populations was re-examined by COSEWIC in November 2018 and both populations were designated as endangered. The assessments were included in the COSEWIC Annual Report 2018 to 2019.

The full status reports, including the reasons for each of the three species’ designation and their geographic range, are available on the Species at Risk Public Registry website.

Objective

The objective of the Order Amending Schedule 1 to the Species at Risk Act (the Order) is to help maintain Canada’s biodiversity and the well-being of Canadian ecosystems by preventing wildlife species from becoming extirpated or extinct, and by contributing to their survival or recovery. The Order reclassifies Carmine Shiner, Rainbow Smelt (Lake Utopia large-bodied population), and Rainbow Smelt (Lake Utopia small-bodied population) under SARA, from threatened to endangered on Schedule 1, as set out in the COSEWIC assessments.

Description

The Order will amend Schedule 1 of SARA to reflect the reassessments done by COSEWIC. The Order will

• reclassify Carmine Shiner under Schedule 1 of SARA from threatened to endangered;
• reclassify Rainbow Smelt (Lake Utopia large-bodied population) under Schedule 1 of SARA from threatened to endangered; and
• reclassify Rainbow Smelt (Lake Utopia small-bodied population) under Schedule 1 of SARA from threatened to endangered.

The general prohibitions under sections 32 and 33 of SARA apply equally to species listed on Schedule 1 as threatened, endangered or extirpated, making it an offence to

• kill, harm, harass, capture or take an individual of such a listed species;
• possess, collect, buy, sell or trade an individual of such a listed species, or any part or derivative of such a listed species; and
• damage or destroy the residence of one or more individuals of such a listed species (for species listed as extirpated, this prohibition only applies if a recovery strategy has recommended its reintroduction into the wild in Canada).

Regulatory development

Consultation

For the Carmine Shiner, the reclassification is anticipated by key stakeholders. The COSEWIC status report assigning the new status for the species and the justification for the change was included in the COSEWIC Annual Report 2017 to 2018 and has been publicly available on the Species at Risk (SAR) Public Registry since December 2018. The response statement indicating how the Minister intends to respond to this assessment was also published on the SAR Public Registry in January 2019. A recovery strategy (2013) and an action plan (2018) are already in place for the Carmine Shiner and will continue to apply under the new classification. These documents were prepared in cooperation with key stakeholders and interested partners who have shown support for the implementation of the identified recovery measures and actions to implement those measures. Therefore, it is expected that the same, or increased levels of support, will continue with the reclassification in order to support the recovery of this species. As required by SARA, a final critical habitat order was made for this species in September 2018. DFO has not received any negative reactions from stakeholders and partners during this process.

For the two Rainbow Smelt populations, the reclassifications are also anticipated by interested Indigenous groups and key stakeholders. The COSEWIC status report assigning the new status for these two species, and the justification for the change, was included in the COSEWIC Annual Report 2018 to 2019 and has been publicly available on the SAR Public Registry since October 2019. The recovery strategy (2016) and action plan (2020) for the Rainbow Smelt (Lake Utopia small-bodied population) were prepared in cooperation with interested Indigenous groups, other key stakeholders and interested partners who have shown support for the implementation of the identified recovery measures. The recovery strategy and action plan for the Rainbow Smelt (Lake Utopia small-bodied population) already include some discussion and consideration of the large-bodied population, given the interconnectedness between this species pair. The listing decision with respect to the large-bodied population had been anticipated for a number of years before it was added to Schedule 1 as threatened in August 2019.

While no Indigenous communities will be directly impacted by this Order, Indigenous groups have been supporting conservation actions for these species for many years. Those efforts are expected to continue unaffected by the reclassification on Schedule 1 as the changes will have no impact on current activities. Indigenous groups and other key stakeholders will be engaged in amending the recovery strategy and action plan for the Rainbow Smelt (Lake Utopia small-bodied population) to formally include the large-bodied population of Rainbow Smelt. All involved parties have shown consistent support for having these two species of Rainbow Smelt listed under SARA. In the recent listing of the large-bodied population, no concerns were raised.

During the 30-day public comment period on the 2019 proposal to list the Rainbow Smelt (Lake Utopia large-bodied population) as threatened, two comments were received. One comment was from an Indigenous organization that supported listing this species under SARA, citing concerns regarding threats of habitat loss and degradation, and predation by landlocked salmon. The organization expressed support for further studies on the species to learn how best to protect and restore it. The second comment was from a non-governmental organization that also expressed support for the listing of this species, as it has an inherent value and further decline must be prevented.

The Order was prepublished in the Canada Gazette, Part I, on January 25, 2020, for a 30-day public comment period. No comments were received.

Modern treaty obligations and Indigenous engagement and consultation

As per the 2015 Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment was conducted on this Order. The assessment concluded that implementation of this Order will not have any impact on the rights, interests or self-government provisions of treaty partners. Carmine Shiner, Rainbow Smelt (Lake Utopia large-bodied population) and Rainbow Smelt (Lake Utopia small-bodied population) are not located within or adjacent to a geographic area subject to a modern treaty.

Regulatory analysis

Benefits and costs

Costs

Reclassification of these species from threatened to endangered under Schedule 1 of SARA will not change the application of the prohibitions or significantly alter the requirements for recovery planning, including critical habitat identification and protection. Therefore, there are no anticipated incremental costs to stakeholders associated with these reclassifications. The recovery strategies for the Carmine Shiner and the Rainbow Smelt (Lake Utopia small-bodied population) have already been finalized, and the recovery strategy for the Rainbow Smelt (Lake Utopia small-bodied population) partly accounts for the Rainbow Smelt (Lake Utopia large-bodied population) but will be amended fully so that it will also be considered as the recovery strategy for the Rainbow Smelt (Lake Utopia large-bodied population). Therefore, negligible incremental costs associated with the reclassifications are anticipated for the Government of Canada.

Benefits

The Order supports efforts to maintain Canada’s biodiversity and the well-being of Canadian ecosystems through the recovery and protection of Carmine Shiner, Rainbow Smelt (Lake Utopia large-bodied population) and Rainbow Smelt (Lake Utopia small-bodied population). For stakeholders, the change of classification under Schedule 1 of SARA will not change the application of the prohibitions and protection provided for in SARA with respect to these three species because prohibitions and obligations under SARA apply similarly to threatened and endangered species. The Fisheries Act will also continue to apply in the same manner. Therefore, the protections that were afforded to the species will continue to be provided. There will therefore be no incremental benefits as a consequence of the reclassifications anticipated for Canadians, including Indigenous partners, or industry stakeholders.

Small business lens

No impacts on small businesses are anticipated as a result of this Order.

One-for-one rule

No impacts on administrative burden costs are anticipated as a result of this Order.

Regulatory cooperation and alignment

The Order will help to protect Canada’s biological diversity, and facilitates the fulfillment of commitments made by Canada under the United Nations Convention on Biological Diversity.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals and its departmental policy on strategic environmental assessments (SEAs), the Department of Environment and Climate Change Canada conducted an SEA as required by its internal directives. The SEA concluded that the Order is expected to result in positive environmental effects that will support the goal of “Healthy wildlife populations” of the Federal Sustainable Development Strategy.

It should be noted that, as the species being reclassified as a result of this Order are already listed as threatened on Schedule 1 of SARA and are being managed for conservation and recovery, the environmental benefits in terms of protecting Canada’s biodiversity are already being met. This will continue with the reclassification to endangered in that there will be no change in the application of the prohibitions and, therefore, the protection for the species. In the case of the Rainbow Smelt (Lake Utopia large-bodied population), the reclassification will require that a recovery strategy be prepared within shorter time frames, which will contribute to positive environmental effects.^{footnote 4}

Gender-based analysis plus (GBA+)

The reclassification of Carmine Shiner, Rainbow Smelt (Lake Utopia large-bodied population), and Rainbow Smelt (Lake Utopia small-bodied population) from threatened to endangered on Schedule 1 of SARA is not anticipated to have any disproportionate impacts on people or groups on the basis of gender or other identity factors. The reclassifications do not change the application of the prohibitions or significantly change the requirements for recovery planning, including critical habitat identification and protection. Therefore, no groups will be impacted differently as a result of this Order.

Rationale

The reclassification under Schedule 1 of SARA reflects the designation assigned by COSEWIC. It is reflective of a scientific assessment on the risk status of these populations provided by COSEWIC. The proposed approach is aligned with DFO’s default listing position, as defined in the DFO Listing Policy. More specifically, there is no compelling rationale to not list these species as assessed by COSEWIC. The reclassifications also provide clarity and certainty to Canadians, as the status of the species are updated in Schedule 1 to reflect the COSEWIC scientific assessments.

The application of the prohibitions and protection provided for in SARA is equivalent for species listed as threatened or endangered under SARA and will not be impacted by the reclassifications on Schedule 1. Requirements for recovery planning, including the identification and protection of critical habitat, are also similar for species listed as endangered or threatened, the only difference being that SARA requires the preparation of a recovery strategy within one year of listing or reclassification for endangered species instead of within two years for threatened species.

Implementation and compliance and enforcement

Implementation

A recovery strategy for Carmine Shiner was finalized in October 2013 and an action plan for the species was finalized in August 2018. A recovery strategy for Rainbow Smelt (Lake Utopia small-bodied population) was finalized in October 2016 and an action plan for the species was finalized in March 2020. Both the recovery strategy and the action plan for Rainbow Smelt (Lake Utopia small-bodied population) give consideration to the Rainbow Smelt (Lake Utopia large-bodied population), which was not listed on Schedule 1 when the recovery strategy and the proposed action plan were published. Both the recovery strategy and the action plan will be amended so that they will also cover the Rainbow Smelt (Lake Utopia large-bodied population).

Permit applications, if any, for these species will be considered in accordance with the Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations, which came into effect on June 19, 2013. Permitting applies equally to species listed as threatened or endangered. Therefore, the reclassifications are not expected to have any impact on the consideration or granting of permits under SARA. Explanations as to why a permit is issued are published on the Species at Risk Public Registry.

All costs to the Government of Canada associated with the Order will be managed by the Department of Fisheries and Oceans within existing resources.

Compliance and enforcement

SARA provides for penalties for contraventions to the Act, including fines or imprisonment, seizure and forfeiture of things seized or of the proceeds of their disposition. Alternative measure agreements may also be used to deal with an alleged offender under certain conditions. SARA also provides for inspections and search and seizure operations by enforcement officers designated under SARA. Penalties apply equally to species listed as threatened or endangered, and will therefore not change as a result of this Order.

Contact

Julie Stewart
Director
Species at Risk Program Management
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: SARA_LEP@dfo-mpo.gc.ca