An examination of the hurdles created by differing conservation legislation in the U.S. and Canada
Some of us are familiar with Aldo Leopold’s appreciation for Canada geese when he mused that, “One swallow does not make a summer, but one skein of geese, cleaving the murk of a March thaw, is the spring.”
Many of us know the heartwarming excitement at hearing the first honk of the fall as geese start their southward migration. The really fortunate among us know the calm anticipation of sitting in a cold blind at sunrise and seeing the specks of a flock of geese grow larger from the horizon as they come into our decoys amidst a frantic chorus of calls. Canada geese (Branta canadensis), in addition to Aldo Leopold’s seasonal muse, are also among North America’s conservation successes.
The story of Canada geese follows the trajectory of too many North American species that experienced a dramatic decline due to overhunting and habitat conversion, recovered by dedicated conservation action. As a migratory species, geese also require multiple countries and governments to commit to management and cooperate for conservation.
As one example, the Aleutian Canada goose (Branta hutchinsii leucopareia) is a small subspecies of the cackling goose (B. hutchinsii), with adults only slightly larger than a mallard, that winters in California and Oregon and breeds on Alaska’s Aleutian Islands.
Their populations began to decline when trappers and fur farmers introduced foxes to their breeding grounds in the middle of the 18th Century. Aleutian Canada geese were presumed extinct until biologists found a small population in 1963. The Aleutian Canada goose was listed as endangered in 1967 with only 200-300 living individuals. From then, conservation efforts included the full range of tools available to managers: captive rearing, hunting closures, fox removals from nesting islands, and habitat management in wintering grounds. By 1991, the species was uplisted to threatened; in 2001, the Aleutian Canada goose was delisted and celebrated as a conservation success with numbers reaching 60,000 birds.
Conservationists on the Pacific Coast could again hear the calls of Aleutian Canada geese “cleaving the murk of a March thaw.”
Scientists now warn that the world is experiencing a sixth mass extinction that is driving species to disappear at up to 1,000-times the natural rate. Previous mass extinction events were generally caused by massive catastrophic events. In contrast, the current mass extinction is caused by human activity and impacts the world’s biodiversity. Scientists estimate that a quarter of the world’s species are at risk of extinction.
If we want to slow the decline of the world’s wildlife, and we all do, then we need strong frameworks for identifying species at risk of extinction and mechanisms to recover their populations. The legal landscape of endangered species frameworks in Canada and the U.S. can be complex and difficult to sort through. Here we provide background on the two countries’ approaches and some reflections on their strengths and weaknesses.
Endangered species laws
One of the biggest differences in the endangered species frameworks between Canada and the U.S. is that the Canadian system is comparatively quite new. While the fundamental goal of both countries is to protect and recover species whose populations have declined, the nature and structure of our respective approaches to endangered species have some important differences.
In Canada, species at risk are protected under the Species At Risk Act (SARA). The Canadian government passed SARA into law in 2002 to provide legal protections and guide the development of recovery strategies for species at risk. The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) has existed since 1977 as the national independent committee of experts that assesses wildlife populations. When the government passed SARA, it officially made COSEWIC an advisory body to the species at risk process.
In the U.S., Congress passed the Endangered Species Preservation Act in 1966. This was an avenue for listing animal species as “endangered” and giving them protections, albeit limited, against habitat destruction and gross harvesting through hunting or fishing. Later, in 1973, Congress passed the Endangered Species Act (ESA), which supersedes the 1966 Act and is the first iteration of these regulations as we know them today. The Act has undergone augmentations and amendments, but the major government players in identifying endangered or threatened species in the U.S. are the U.S. Fish and Wildlife Service (USFWS), which falls under the Department of the Interior, and the National Marine Fisheries Service (NMFS), which falls under the Department of Commerce.
Assessment and listing process in Canada
COSEWIC conducts regular assessments, and recommends species that should be listed and protected under SARA. The Canadian framework’s six statuses include four risk categories (in increasing order of severity): special concern, threatened, endangered, and extirpated from Canada. COSEWIC assessments consider a combination of criteria, including a species’ population and habitat status, trends, and threats. COSEWIC assessments focus only on ecological and biological criteria, specifically excluding considerations related to socioeconomic costs or benefits to listing a species.
Under COSEWIC’s assessment criteria, a species could be considered endangered if it demonstrates the following:
- The number of mature individuals shows a decline of 70 percent or more over three generations (or 10 years, whichever is longer). This decline can be a result of an observed reduction in actual numbers, deterioration of habitat quality, a reduction in the extent of area occupied by the species, exploitation or over-harvesting, or factors such as diseases and pollutants.
- The species has a small range, shows drastic fluctuations in population, or has fragmented populations.
Under Canada’s multistep process COSEWIC submits its recommendation to Environment and Climate Change Canada (ECCC), the Federal department responsible for SARA, for a decision about whether to list a species. The Minister then has 90 days to publish a “Response Statement” indicating how he/she intends to respond to the COSEWIC assessment. At this point in the process, the Minister of ECCC considers the social and economic costs of listing a species under SARA.
The Minister then submits a recommendation for review by the Governor in Council (GIC), who has nine months to make a final decision to either list the species, not list the species, or send the assessment back to COSEWIC to request more information. Ultimately, the decision about whether or not to list a species is a political decision and there is no question that Canada has decided against protecting declining species because of the social or economic costs.
In Canada, the federal and provincial governments collaboratively manage species at risk. When the Federal government lists a species as at risk, the legal protections provided by SARA automatically and immediately apply only to migratory species, aquatic species, and federal lands. For aquatic species, federal responsibility for protecting species at risk falls to the Minister of Fisheries and Oceans Canada.
Provincial governments have the bulk of responsibility for managing species listed under SARA. Once a species is listed, the provincial government is required by section 42(2) of SARA to identify the species’ critical habitat and develop management and recovery plans consistent with the requirements of SARA.
Assessment and listing process in the United States
As for the U.S. methods for identifying species, Section 4 of the ESA delineates how potential threatened or endangered animals and plants are identified, as well as how species are removed from the endangered or threatened lists once protection or restoration objectives are accomplished.
The U.S. has four statuses, similar to Canada’s: extinct, endangered (i.e., likely to become extinct without protections), threatened (i.e., likely to become endangered), or delisted (i.e., removed due to repopulation or habitat restoration successes).
Under the ESA, a species must demonstrate at least one of five factors to be considered as endangered or threatened:
- Current or expected destruction, modification, or reduction in species’ habitat
- Overuse of the species for commercial, recreational, or scientific purposes
- Disease or predation of the species in question
- Regulations that inadequately protect species
- Other organic or inorganic factors affecting the species propagation
The U.S. Fish and Wildlife Service and the National Marine Fisheries Service can both begin the listing process for a species that is of concern. Different from Canada, however, is the opportunity for private citizens and organizations to petition for a species’ listing. As provided by the ESA, any concerned person can petition the Secretaries of the Interior or Commerce to have a species added or removed from the threatened and endangered lists.
The USFWS or the NMFS are required to make a finding on the petition within 90 days of its receipt. A petition can be determined as not warranted, at which point the listing process stops. It can also be warranted, and the 12-month process for determining whether or not an endangered or threatened listing is needed begins. Lastly, it is possible that a petition could be warranted but precluded; the USFWS and NMFS essentially “back burner” the listing process, giving higher priority to species that are in dire straits. Once a plant or an animal is added to the list, all federal protections apply as set forth in Section 7 of the ESA.
While the ESA is the federal legislation for species protection, some states have enacted their own regulations. Most state legislation around endangered species simply outlines a mechanism for federal listing, as described above, and prohibits the harvesting of or trafficking in listed species within or across the state’s boundaries.
States like California, Kansas, and Hawai’i, however, have comprehensive and detailed endangered species acts that are modeled closely after the federal ESA. Additionally, Section 6 of the ESA outlines The Cooperative Endangered Species Conservation Fund – a tool that provides grants to states and territories to enact volunteer-run conservation projects for currently listed and proposed species. The program provides funding for the conservation of animals and habitat on non-federal lands. States must fund 25 percent of the estimated costs or 10 percent when two or more states work on a joint program, and they must currently have, or enter into, a cooperative agreement with the Secretary of the Interior to receive grants. Most states already have these agreements in place.
Many other governmental organizations contribute to scientific publication, data collection, and protection activities.
The U.S. Department of Agriculture (USDA), and its subdivision of the Forest Service (USFS), provide direction for the management of natural resources including national forests and grasslands, which comprise 193 million acres of public land in the U.S. Additionally, the National Parks Service strives to keep tabs on approximately 1,000 endangered and threatened animal and plant species found within U.S. national parks. They provide annual updates on the listed species found in the country’s parks as well as the money spent on restoring habitat or monitoring animals. Also important to the process is the Environmental Protection Agency (EPA), whose role is to protect the land, air, and water on which human life is dependent. The EPA also helps institute conservation programs that focus on long-term resource sustainability.
Strengths and weaknesses
The Canadian system differs in certain ways from the Endangered Species Act (ESA) in the United States. A 2013 study published in the journal Bioscience compared the Canadian and American systems and recommended that they could each benefit from adopting some of the strengths of the other.
The study suggested that the American system could benefit from an overarching national scientific body responsible for all species assessments, such as Canada has with COSEWIC. Because the ESA is administered by both the USFWS and the NMFS – oftentimes requiring input from both services for one animal (e.g., multiple species of sea turtles) – there is often variation in the methodology employed to determine whether or not a species should be listed.
The need for multijurisdictional approaches presents problems in the Canadian context, too. SARA requires provinces to develop recovery plans and manage endangered species on non-federal lands. Part of the problem in Canada, and a key factor in the country’s poor record of species recovery, is that four of Canada’s ten provinces lack any independent endangered species legislation (British Columbia, Alberta, Saskatchewan, Prince Edward Island).
“The federal act rarely helps at-risk species because provinces wield control over land-use decisions.”
– Dr. Andrea Olive, Associate Professor, University of Toronto
An important factor to evaluate endangered species frameworks is the timeline for the development of species recovery strategies. When a species is listed under SARA, the Federal government is required to develop a Recovery Strategy and an Action Plan. Recovery Strategies have required timelines for completion based on the listing status and cannot consider socioeconomic costs in their design. On the other hand, Action Plans are intended to outline specific actions to achieve species recovery and they do consider socioeconomic costs; however, there is no required timeline for the completion of Action Plans.
The ESA has stricter timelines and listing decisions in the U.S. are not permitted to consider socioeconomic costs, meaning that, in principle, listing decisions are based solely on science and not politics. Canadian legal scholar Shaun Fluker agrees with the strength of the U.S. system in this regard, arguing that, “The mixing of politics into science is arguably the most significant problem in what is Canada’s most effective endangered species regime – the federal framework under SARA.”
The U.S. system involves a single Recovery Plan, overseen by the Secretary of the Interior. The weakness of this system is that there is no required timeline for the development or implementation of Recovery Plans. That being said, researchers in Canada compared the quality of recovery goals for specific species in Canada and the U.S. and found that the goals set forth under ESA had higher quantitativeness and ambition than those under SARA. With a set of quantitative goals, conservationists are presented with defined, numerical benchmarks by which they can measure recovery successes and failures, which are directly linked to actually meeting those goals.
The strengths and weaknesses of the different systems lead to opportunities and challenges for successful species recovery. Importantly, while both systems have structures that facilitate multi-jurisdictional cooperation, there is far too little cooperation between countries.
Measures of success
A 2014 study published in the journal PLoS One offers some insight into Canada’s record of species recovery. The researchers examined cases of species that have been assessed more than once by COSEWIC, indicating that at least some time had passed for governments to develop and implement recovery strategies.
The study found that out of 369 species that have been assessed multiple times, 47 percent of species initially classified as special concern deteriorated in status (later being classified as threatened or worse). Only 20 species out of 369 received a “not at risk assessment” after initially being assessed as one of the risk categories (special concern, threatened, etc.). The number of species that deteriorated in status outnumbered those that recovered by approximately two-to-one. Also, there is a general gap in identifying species’ critical habitat, meaning that fully effective implementation of recovery plans is impossible.
Canada and the U.S. have a long and successful history of transboundary management of migratory species through the Convention for the Protection of Migratory Birds, signed between the two countries in 1916. However, migratory birds are certainly not the only species that move between the two countries; for years before the last U.S. animals were relocated to Canada, the Porcupine caribou herd migrated from the Pacific Northwest to the Yukon and back every year. Given the differences between the Canadian and American approaches to managing endangered species, how do the two countries consolidate and align goals when it comes to endangered species that cross the border?
According to a 2014 review of species listed under both the ESA and SARA published in The Canadian Geographer, there is very little of what researcher Andrea Olive calls “conservation diplomacy” between Canada and the U.S. around endangered species recovery.
Canada and the U.S. both list 30 endangered or threatened species, 17 of which are transboundary, moving between the two countries within their ranges. Out of the 30 shared species, the whooping crane (Grus americana) is the only species for which the two countries developed a joint recovery plan.
Some of the numbers have changed since Olive’s review was published in 2014, but the principles she raises are critical considerations for Canada and the U.S. to improve their endangered species frameworks to effectively recover species. Despite numerous shared species and overlapping habitats between the countries, Olive found that collaboration is hindered by unfinished recovery plans, a lack of support and resources for travel and communication, inconsistent approaches to cooperation, and lack of leadership from high-level agencies.
We generally talk about wildlife management at a provincial/state or national level. However, it is also possible for governments to coordinate management efforts across national borders to ensure a species is managed effectively across its entire range, an approach referred to as transboundary conservation.
Transboundary conservation is increasingly important as the threats to biodiversity become more complex due to climate change and large-scale industrial development. A recent study found that 53.8 percent of all terrestrial birds, mammals, and amphibians cross international borders. Also, 21 percent of the world’s threatened species have ranges that cross political borders. What is needed is for governmental organizations to build opportunities for transboundary conservation and multijurisdictional collaboration into their conservation apparatuses.
In 1994, Canada, Mexico, and the U.S., banded together under the North American Agreement on Environmental Cooperation to form an intergovernmental organization to address environmental challenges that exist across the continent: the Commission for Environmental Cooperation (CEC). This group signed the 2018 Agreement on Environmental Cooperation, a very important step toward collaboratively reducing pollution, strengthening environmental statutes, conserving biological diversity, and sustainably managing natural resources.
Canada and the U.S. have tremendously promising opportunities to pursue transboundary cooperation through other scientific collaborations as well. In 1995, to preserve endangered species and achieve the shared goals of our countries’ different protection frameworks, conservation agencies in Canada, the U.S., and Mexico, united to form The Trilateral, an inclusive effort across the entire continent of North America to consolidate transboundary goals of species and habitat protection.
As hunter-angler-conservationists in the U.S. and Canada, we have a duty to protect species beyond those animals we want to put on our dinner plates. To maintain healthy marine and terrestrial habitats that support long-term biodiversity and species propagation across our borders, we must look beyond the obvious elk and deer and salmon and tuna. One such animal that needs help immediately is the North Atlantic right whale, and conservation efforts for this animal have been lackluster, at best.
The North Atlantic right whale was nearly hunted to extinction by the turn of the 20th Century, and it has been listed as a protected species in the U.S. since 1970 (becoming “endangered” at the inception of the ESA in 1973) and by COSEWIC since 1980 (becoming “endangered” under SARA in 2005). A large proportion of the mortal injuries inflicted on right whales come as a result of strikes by marine vessels and could be prevented with reduced speeds. However, the Slow Zones implemented in U.S. and Canada waterways where the migrating whales are found are not consistently enforced, and it has been shown that vessels often exceed the designated speed limits. With fewer than 400 individuals left in the world, Oceana Canada has implored the two governments to work together on a recovery plan, the campaign director stating, “Current measures are not enough to protect right whales. Speed restriction zones must be expanded, maintained and strictly enforced.”
Despite some flailing international conservation efforts in the past, there are historical examples of successful species protection and recovery both between Canada and the U.S. and also across many other international borders. You can help these efforts by supporting organizations such as the Yellowstone to Yukon Conservation Initiative (Y2Y) that works to increase ecological connectivity throughout the continent and improve transboundary and inter-agency collaboration. The CEC’s Baja California to Bering Sea Region (B2B) program “connects the marine realms of the three countries and offers concrete opportunities for collaboration.”
Another cross-continent organization worth supporting is the Wildlife Conservation Society of North America (WCS), whose mission is to “… wildlife and wild places in North America by understanding critical issues, crafting science-based solutions, and taking conservation actions that benefit nature and humanity.”
As Olive optimistically says in her review, “Canada and the U.S. have worked together to recover migratory birds, protect forests, monitor the Great Lakes, and reduce air pollution. Canada and the U.S. can work together to recover endangered species.”
Paul (he/him) is an environmental social scientist, hunter, and conservationist. He currently lives in Whitehorse, Yukon (traditional territories of the Kwanlin Dün First Nation and the Ta’an Kwäch’än Council). He has a PhD in environmental studies and is interested in understanding and engaging in the full complexity of the social-ecological systems of hunting, fishing, and wildlife conservation. Through his work and writing, he hopes to connect people and their knowledge to contribute to positive and inclusive hunting and conservation communities.