Peter A Allard School of Law

Stories from the Species at Risk Act: The Wolverine in Canada from 2003-2022

Drew Yewchuk

Drew Yewchuk

Allard LLM Candidate

Dec 9, 2022

With a UN Convention on Biological Diversity (CBD) summit this month, some discussion of Canada’s federal endangered species protection law, the Species at Risk Act (SARA) is in order. I will use the example of the Wolverine to show one reason SARA failed: the huge gap between what the law required to be done and what was actually done.

SARA was enacted in 2002 with the purpose of preventing “wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened.”

I will tell the story twice. First as SARA says it should have happened, and second describing what did happen. The second story is told using documents from the SARA public registry the government is required to maintain.

A photograph of a posed wolverine skeleton
A wolverine skeleton, probably all that is left of the eastern population.

The Early Years
Two populations of wolverine are on the schedule of species for assessment when SARA becomes law. The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) provides an assessment of the wolverine in January 2003. Wolverine had a small eastern population and a much larger western population. The eastern population is endangered, or may already have been extirpated, as there have not been confirmed sightings in 25 years. The western population had around 13,000 individuals, but was declining, and has a low reproductive rate and requires vast secure areas to maintain viable populations. COSEWIC’s report noted the parks system would not be sufficient to ensure the survival of wolverine.

In a January 2005 order, at the recommendation of the Minister of Environment, the Governor in Council adds the eastern population to the list of species at risk, but not the western population, in order to further consult with the Nunavut Wildlife Management Board. These consultations are completed by the end of 2005 (see Left off the List).

From here, the two stories diverge.

SARA as Written and Intended: What Did not Happen
A proposed recovery strategy for the eastern population of wolverine that identifies critical habitat (in northern Quebec, the traditional range of the eastern population) would have been proposed in January 2006 and finalized in May 2006. An implementation report on the recovery strategy would have been completed in 2011, along with an action plan. This plan and report describe an approach of capturing and relocating wolverine from southern habitats too close to human encroachment to the previous range of the eastern population.

Following consultation with the Nunavut Wildlife Management Board, the western population should have been added to the list of species of special concern by February 2006. A management plan would have been finalized by May 2009.

After the new COSEWIC assessment in May 2014, the eastern and western populations would have been combined into one population of special concern. Implementation reports for the management plan would have been prepared and posted to the registry in 2014 and 2019, describing the population and habitat trends for wolverine and adjusting management approaches as necessary.

By December 2022, a population of wolverine would have been re-established in northern Quebec and federal management practices for wolverine have been considered in federal impact assessments for projects throughout the wolverine’s existing range for more than a decade.

But that is not what happened. Below is what happened.

SARA in Action: What Actually Happened
No steps under SARA relating to wolverine were taken for nine years, from January 2005 to May 2014. COSEWIC completed a new assessment in May 2014 (but it was not posted to registry until January 2015). The new assessment determined that the separation into eastern and western populations is unnecessary and recommended the wolverine be considered as one population.

A proposed recovery strategy for the Eastern population is placed on the registry in December 2014, but it identifies no critical habitat, although suitable habitat was available. Although a recovery strategy must be finalized within 90 days, the plan was not finalized until March 2016, more than 300 days late. The proposed version said that one or more action plans would be posted to the registry by 2019, but the final version pushed that schedule back two years to the end of 2021.

Four years after COSEWIC recommended treating wolverine as one population, the eastern and western populations were reclassified as a unified population on June 30, 2018. The reclassification meant the extirpated eastern population was combined with the remaining western population for the purposes of SARA and is therefore technically no longer extirpated as it has no legal existence. The legal change does not change the fact that the wolverine is extirpated from their eastern range.

The combined wolverine population was listed as a species of special concern, so a proposed management plan was due within three years, by June 30, 2021. No proposed management plan for the combined population and no reports on the implementation of any recovery measures have ever been placed on the registry.

Research published in 2022 indicates there was steep declines in wolverine winter density and occupancy (39%) in portions of the Rocky Mountains from 2011-2020. These declines in the southern reaches of wolverine habitat took place while SARA was in effect.

These kinds of stories are typical for SARA. Delays and inaction drag on as years pass, usually with no explanation. Species at risk never get that time back. As the federal court put it in Western Canada Wilderness Committee v. Canada (Fisheries and Oceans), 2014 FC 148:

To state the obvious, the Species at Risk Act was enacted because some wildlife species in Canada are at risk. As the applicants note, many are in a race against the clock as increased pressure is put on their critical habitat, and their ultimate survival may be at stake.

The timelines contained in the Act reflect the clearly articulated will of Parliament that recovery strategies be developed for species at risk in a timely fashion, recognizing that there is indeed urgency in these matters. Compliance with the statutory timelines is critical to the proper implementation of the Parliamentary scheme for the protection of species at risk. (paras 101-102)

The will of Parliament to have tasks required by SARA performed in a timely manner has been defeated. Describing what Canada would look like if the SARA had been complied with requires the construction of an alternative history. Sizeable portion of land and water would likely have been protected as critical habitat, and population trends for most species at risk would be known, with some of that information likely having triggered emergency protection measures.

However, SARA’s effectiveness would be limited even with timely implementation. SARA has been undermined in other ways, to name just a few: critical habitat identification has been shoddy,  poor reporting on implementation interferes with public transparency, and permitting damage to critical habitat has been secretive and unprincipled. Importantly, the limits of federal jurisdiction mean provincial laws to protect habitat for species at risk are also necessary: neither B.C. nor Alberta has such a law. Canada’s approach to protecting species at risk has not been effective so far.

  • Centre for Law and the Environment
Photo of Drew Yewchuk

Drew Yewchuk

Allard LLM Candidate

Drew Yewchuk's research relates to access to information law, species at risk, and environmental clean-up liabilities. Drew was formerly a staff lawyer with the University of Calgary's Public Interest Law Clinic from 2018-2022 and is now an LLM student at the Peter A. Allard School of Law.

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