Endangered species law must respect compensation rights

Aboriginal Futures, Canada, Commentary, Joseph Quesnel

The federal implementation of the federal Species of Risk Act is being questioned by environmental activist organizations. They are in federal court alleging the government is not doing enough to protect endangered species.

The groups allege that Ottawa is delaying the release of recovery strategies for certain endangered species. They state that proposed resource development projects, including the Northern Gateway pipeline, affect these species. The lawsuit states the habitats for four specific species- the Pacific Humpback whale, the Nechako White Sturgeon, the Marbled Murrelet and the Southern Mountain Caribou, would be impacted by the construction and operation of the pipeline.

However, there are other critical long standing problems with Canada’s Species at Risk Act that are not being dealt with. These pertain specifically to the compensation provisions of the Act, in particular its vagueness and granting of wide discretion to the minister.  Ottawa should finally settle these issues and provide an example of respect for the rights of land owners to the provinces and territories.

As anyone can imagine designating a species as endangered or threatened often impacts land use and property rights if that species is located on private land.  Land use restrictions often amount to full expropriation in many cases.

The drafters of SARA deserve credit for including compensation provisions in the legislation. Under the law, the Minister may “provide fair and reasonable compensation to any person for losses suffered as a result of any extraordinary impact.”

SARA attempts to provide negotiations for voluntary means for protection of endangered species through conservation agreements.

This approach is in marked contrast to our southern neighbours where a similar law relies on enforcement and penalties.

It is also an exception within Canada. Within the federation, with the exception of Newfoundland and Labrador, Nova Scotia, and the Northwest Territories, provinces and territories do not provide compensation provisions in legislation. In early 2013, the Frontier Centre released its inaugural Canadian Property Rights Index, which measures property rights protections in all provinces and territories. The index featured endangered species as one indicator. The result was that the vast majority of jurisdictions do not respect the right of compensation for landowners affected by a designation.

The central problem is that the details for a compensation framework are not included in the Act. Section 64 of the Act is an enabling provision, meaning that the minister is not obliged to use the provision.  The Section provides the authority for the Governor in Council to establish regulations setting out processes through which compensation could be claimed. Unfortunately, to date, no such regulations have been established.  This means that land owners do not have any rights under the legislation, as the decision to provide compensation is entirely discretionary.

In the 2011 federal election, the federal Conservatives stated they will revisit these provisions and strengthen the protections relating to compensation.  It has been sometime since that election.

Clearly, the government needs to put clear mandatory compensation guidelines right in the legislation.

The Canadian Real Estate Association (CREA), a national organization of realtors, has proposed ways to amend the law and effectively protect land owners.  First off, the definition of “extraordinary impact” needs to be nailed down. The CREA has recommended it be defined as losses that exceed 10 per cent of fair market value as determined by an independent appraisal process.  That sounds like a fair determination. CREA also recommends that compensation requests should trigger a complete independent appraisal process for determining compensation. That is also a fair request that should be mandatory, not discretionary.

Moreover, the law as written does not distinguish between an ordinary and extraordinary impact and does not determine who would decide that.

Compensation assures individual landowners that they will not have to bear the burden of protecting endangered species all alone. The protection of species is a public good provided for all people of all generations. No one disputes that threatened species deserve protection. It is mainly that they must find the right balance between protecting species and protecting landowners.

It’s time Ottawa stopped placing that burden solely on the shoulders of private landowners.