The politics of protecting species: an examination of environmental interest group strategies before and after the Species at Risk Act.

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An Examination of Environmental Interest Group Strategies Before and After the Species at Risk Act

by Kaitlyn Chewka

B.A., University of British Columbia, 2007

A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of

MASTER OF ARTS

in the Department of Political Science

 Kaitlyn Chewka, 2011 University of Victoria

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Supervisory Committee

The Politics of Protecting Species:

An Examination of Environmental Interest Group Strategies Before and After the Species at Risk Act

by Kaitlyn Chewka

B.A., University of British Columbia, 2007

Supervisory Committee

Jeremy Wilson, Political Science Supervisor

James Lawson, Political Science Departmental Member

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Abstract

Supervisory Committee

Jeremy Wilson, Political Science

Supervisor

James Lawson, Political Science

Departmental Member

Our planet is currently in the midst of a mass extinction event. Plants and animals are dying off at a rate undocumented since the dinosaurs went extinct 65 million years ago. Unlike earlier extinction events, however, the current ecological crisis is primarily being driven by a single species – homo sapiens. Although a seemingly overwhelming issue, environmental non-governmental organizations (ENGOs) have dedicated themselves to ensuring strong species protection. In Canada, these interest groups launched and sustained a successful national campaign for federal endangered species legislation that culminated in the enactment of the Species at Risk Act (SARA). While ENGOs‟ campaign for protective legislation has been well-documented by scholars, there is a dearth of research regarding ENGOs‟ strategies following the passage of SARA.

In order to address this knowledge gap, this thesis examines and compares the strategies employed by interest groups in both the pre- and post-passage stages of the Act. After conducting qualitative interviews with seven representatives of Canadian-based ENGOs, this study finds that following the passage of SARA interest groups, dissatisfied with the government‟s weak implementation of the Act, decided to overhaul their strategic approach and shifted the species at risk issue to three new institutional venues: the boardrooms of private corporations, the Commission for Environmental Cooperation (CEC), and the domestic judicial arena. The thesis concludes that, despite inherent challenges, shifting institutional venues can be a successful strategy for ENGOs faced with a government reluctant to implement the hard-won legislative commitments. This work may prove to be particularly pertinent for other non-governmental organizations facing similar obstacles.

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List of Abbreviations

CBD Convention on Biological Diversity

CEC Commission for Environmental Cooperation CESC Canadian Endangered Species Coalition CESPA Canada Endangered Species Protection Act

COSEWIC Committee on the Status of Endangered Wildlife in Canada DFO Department of Fisheries and Oceans

DSF David Suzuki Foundation

ENGO Environmental Non-Governmental Organization

ESA Endangered Species Act

HSP Habitat Stewardship Program

MBCA Migratory Birds Convention Act

NAAEC North American Agreement on Environmental Cooperation NAFTA North American Free Trade Agreement

NGO Non-Governmental Organization

PCO Privy Council Office

PMO Prime Minister‟s Office

RENEW Recovery of Nationally Endangered Wildlife RIAS Regulatory Impact Analysis Statement

SARA Species at Risk Act

SARAC Species at Risk Advisory Committee SARWG Species at Risk Working Group

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List of Tables

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Acknowledgments

First and foremost, I would like to thank my supervisor, Dr. Jeremy Wilson, for his wisdom, direction, and dedication to this project. I will be eternally grateful for the time and effort he has put in to help ensure this thesis was completed on time. I would also like to thank Dr. Jamie Lawson for his insightful comments and keen editorial eye, as well as the department‟s graduate secretaries, Kimberly Anderson and Shelley Ma for assisting with a number of needs over the past two years.

Secondly, I would also like to thank the dedicated ENGO-staff members I interviewed for both their time and their insights. Their contributions proved to be invaluable to my research project.

I would also like to thank my fellow graduate students who were sources of inspiration and motivation especially when it felt as if there was no end in sight.

Finally, I must thank the pillars of my life: my parents, for their love,

encouragement and for raising me to believe that anything is possible; my partner Sean for his unwavering support of my seemingly endless academic pursuits and; lastly my two children, Autumn and Hudson, who after two long years no longer have to dread hearing the words “Mummy has to work on her thesis.”

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Chapter One: Introduction and Background Information

In June 1992 under the auspices of the Convention on Biological Diversity (CBD), Canada committed itself to the conservation and sustainable use of biological diversity. Although a dramatic step forward for the international community, the significance of the treaty for Canadian wildlife cannot be understated. At the time the treaty was ratified, Canada had not yet enacted federal endangered species legislation and had no intention of passing such a law.1 Recognizing the lack of political leadership in this key policy area, environmental non-governmental organizations (ENGOs) initiated a national campaign for federal endangered species legislation that highlighted the government‟s failure to meet its international commitments under the CBD.

After a decade of intense „all-directional‟ lobbying, countless concessions on behalf of the environmental lobby, and three failed legislative bills, the efforts of these dedicated non-profit organizations finally bore fruit.2 In 2003 the Canadian government ratified the Species at Risk Act (SARA). Although SARA failed to meet all of the ENGOs‟ expectations, it represented a considerable improvement on the patchwork of provincial regulations that preceded it. Unfortunately for engaged ENGOs, however, any sense of reassurance that followed the passing of the Act was quickly dashed in the implementation phase of the policy cycle. The absence of political will that had plagued the pre-passage politics of the Act also infected the implementation process. The federal departments responsible for implementing the Species at Risk Act were consistently

1

Stewart Elgie. “The Politics of Extinction: The Birth of Canada‟s Species at Risk Act,” in Canadian

Environmental Policy and Politics: Prospects for Leadership and Innovation, 3rd Edition. eds. Debora L. VanNijnatten and Robert Boardman (Toronto: Oxford University Press, 2009), 197.

2_{William P. Browne, „Lobbying the Public: All-Directional Advocacy‟, in Interest Group Politics, 5}th_ed. Eds. Allan J Cigler and Burdett A. Loomis (Washington: Congressional Quarterly Inc., 1998), 343.

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underfunded and headed by Ministers who lacked the political will to implement the Act effectively, or in some instances blatantly obstructed the implementation process.

Convinced of the necessity of effective implementation, however, environmental interest groups sprang to action once again. Rather than rely upon the same strategies deployed in the pre-passage phase of the Species at Risk Act, however, many of Canada‟s largest environmental organizations engaged with the species-at-risk issue orchestrated a calculated reformation of their strategic approach. They shifted focus from institutions dominated by governmental interests to institutional venues perceived to be more amenable to their cause. In particular, engaged ENGOs invested considerable resources in an attempt to shift the policy debate from committee rooms to courtrooms, supranational tribunals and the boardrooms of private corporations.

Although shifting venues is a well-known strategy amongst environmental interest groups, there are currently no comparative analyses of the strategies employed by interest groups in the pre- and post-passage phases of a federal environmental policy. This is a significant dearth in the knowledge because understanding interest groups‟ strategies is important in the context of understanding their influence on the policy outcome. Therefore, in order to address this knowledge gap, I compare the strategies of ENGOs that were actively engaged with the issue of Canadian species-at-risk at different stages throughout the policy cycle. Using data collected through interviews and secondary sources, this thesis provides a detailed account of interest groups‟ pre-passage strategies and the post-passage politics of implementation.3 It examines the challenges

3_{In accordance with the current ethical standards of research practice outlined in the Tri-Council Policy} Statement on Ethical Conduct for Research Involving Humans, I conducted semi-structured telephone interviews with seven individuals employed with four different Canadian-based environmental interest groups. The interviews were taped and transcribed. Interviews typically lasted 60 minutes, although one ran

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faced by ENGOs engaged in implementation politics and the tactics these organizations used to overcome these obstacles. In short, by providing a detailed comparison of interest groups‟ strategies pre-and post-passage this thesis assesses the impact of strategic venue shifting on ENGOs‟ ability to achieve their stated aims, namely providing for the protection and recovery of Canada‟s species at risk.

To this end, this thesis is divided into five chapters. The first chapter provides background information regarding the current extinction crisis, the status of species at risk in Canada and the reasons why species should be protected under federal legislation. It also outlines two theoretical frameworks that are used throughout the thesis, the policy cycle and the policy regime framework.

The second chapter outlines the pre-passage politics phase and is divided into six sections. Each reflects a stage in the Species at Risk Act‟s policy cycle, including: (1) Agenda Setting, (2) Policy Formulation, (3) Decision-making Stage I; (4) Policy (Re)formulation, (5) Decision-making Stage II, and (6) The Final Product. Each of these sections examines the strategies used by environmental interest groups, taking into account the impact of ideas, actors, institutions and background conditions. The goal here is ultimately to assess groups‟ ability to achieve strong federal endangered species legislation.

The third chapter, divided into three sections, focuses explicitly on the politics of the implementation stage. The first section of this chapter details the criteria necessary for effective implementation of a government statute and the notable absence of the majority of these conditions from Canada‟s endangered species legislation. The second section as long as 120 minutes. In each case I asked respondents open-ended questions that allowed them to relate their personal experiences with the issue of species-at-risk protection. Each of the interviews was conducted in confidence, however, in three instances the interviewees agreed to waive their rights to confidentiality.

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examines the role of environmental interest groups in the implementation of the Species at Risk Act and the factors that have hampered their ability to induce strong governmental implementation of the Act. The third section details the multiple ways in which the Canadian federal government has failed to implement the Species at Risk Act effectively.

The fourth chapter lays out the core of the thesis. It is divided into four sections. The first section provides a theoretical overview of Baumgartner and Jones‟ concept of venue shopping and how this concept can be adapted to account for the documented shift in ENGOs‟ strategies following the passage of the Species at Risk Act. The second, third and fourth sections detail ENGOs‟ strategic shifts to new institutional venues. In particular, these sections examine the inherent challenges and benefits of shifting the policy debate to three new institutional venues: the domestic judicial arena, a supranational tribunal known as the Commission for Environmental Cooperation, and the boardrooms of large, private corporations.

The fifth chapter briefly restates the insights from the previous chapters, but most importantly it assesses the effectiveness of ENGOs‟ strategic venue shifts. It details how ENGOs navigated the inherent hazards of shifting institutional venues and achieved measurable improvements in the implementation of the Species at Risk Act. While the dedication of ENGOs throughout both the pre- and post-passage phases of the Species at Risk Act is commendable, the conclusion notes these strategies alone will not address the root of the extinction crisis. As many interest groups observe systemic change requires

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further strategic diversification that will enable them to galvanize and maintain a groundswell of public pressure on key decision-makers.4

The Crisis of Species Extinction

Throughout Earth‟s geologic history there have been five major extinction events. In each a large number of species from a variety of taxonomic groups died out within a short period of time. Alarmingly, scientists now suggest that we are in the midst of a sixth ecological crisis. In fact, renowned ecologist E.O. Wilson estimates that the rate of extinction is now between one thousand and ten thousand species per million annually, a rate which is particularly disconcerting considering it is one thousand to ten thousand times greater than the background rate that has persisted for the past sixty-five million years.5 Significantly, scientists now expect that between one-third and two-thirds of all species will be driven into extinction by the end of the next century.6 Even Canada, which is often perceived to be a wildlife haven, has suffered biodiversity loss. According to the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), fourteen species historically found in Canada are now extinct, twenty-three have been extirpated from the Canadian wild, while another two hundred seventy-eight species remain endangered.7 Troublingly, these statistics may represent only the tip of the iceberg since

4_{Interview with ENGO staff lawyer. February 24, 2011. All interviews were conducted in confidence, and} unless the interviewee waived confidentiality protections, the names of interviewees are withheld by mutual agreement.

5

E.O Wilson, The Future of Life (New York: Alfred A. Knopf, 2002), 100.

6_{Peter H. Raven, “Introduction,” in Nature and Human Society: The Quest for a Sustainable World, eds. Peter} H. Raven and Tania Williams (Washington, D.C: National Academy Press, 1997), 4.

7_{“Once More, Aquatic Species in Canada Highlighted at Recent Species at Risk Meeting,” COSEWIC, last} modified May 9, 2011, accessed June 10, 2011, http://www.cosewic.gc.ca/eng/sct7/sct7_3_17_e.cfm. COSEWIC is an independent committee of experts that assesses and designates which wildlife species are in danger of disappearing from Canada.

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less than 1 percent of Canada‟s two hundred eighty thousand species have undergone rigorous scientific assessment.

While the rate and magnitude of the loss is remarkable in itself, the most significant aspect of the current ecological crisis is that for the first time in Earth‟s history the extinction rate is being driven primarily by a single species – Homo sapiens. Across the globe, humans are engaging in an irresponsible and reprehensible game of Chicken. Driven by perverse notions of progress and a seemingly primal fear of forfeiting any potential economic advantage, whether perceived or real, policymakers are thrusting Earth towards rapid ecological collapse. For example, despite the fact that habitat loss and habitat fragmentation have been identified as the primary cause of the current extinction crisis, decision makers have continued to condone the degradation of wildland for agricultural purposes, industry use, urban expansion, and the establishment of transportation networks. Most of Canada‟s diverse ecosystems have been degraded. For example, 90 percent of Carolinian forests have been converted to farmland or towns, 99 percent of the native tall-grass prairies have disappeared, while 65 percent of the coastal marshes historically found in Atlantic Canada have been lost due to dyking and drainage.8 As habitat loss and fragmentation proceeds, the average fragment size decreases and the insularity of the remaining habitat increases. According to Wilcox, this is particularly significant as habitat loss and ecological insularization both contribute to a decline in biodiversity.9

8_{“Ecosystem Management – Stressors,” Parks Canada, last modified April 15, 2009, accessed November 17,} 2010, http://www.pc.gc.ca/progs/np-pn/eco/eco2.aspx.

9_{B.A. Wilcox, “Insular Ecology and Conservation” in Conservation Biology: An Evolutionary-Ecological} Perspective eds. M.E. Soule and B.A. Wilcox (Sunderland, Mass: Sinauer, 1980): 95-118.

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Exacerbating the impact of the direct loss of habitat and the ecological insularity that follows are a number of other anthropogenic stressors including pollution and contamination, overexploitation for commercial purposes, the introduction of invasive species, and the current climate change crisis. The economic activities driving these threats are not only condoned by the Canadian government but implicitly encouraged through perverse subsidies. For example, the Canadian federal government continues to subsidize an agricultural industry responsible for polluting waterways with toxic pesticides and synthetic fertilizers, coastal fisheries that overharvest already depleted stocks, and a tar sands industry which is notorious for both the environmental wasteland created during extraction and its contribution to global climate change. Despite policymakers‟ refusal to heed the calls of ENGOs and promote a framework of sustainable development, proponents of change cite a number of reasons why ecosystems should be granted comprehensive legislative protection within Canada.

The Necessity of Species Protection

When broaching the subject of the necessity of endangered species protection in Canada, proponents of protective legislation typically rely upon one of three arguments. The first is deeply anthropocentric and based on the direct utility of particular species to human beings.10 Adherents of this approach use economic measures, such as cost-benefit analyses, to argue that protecting species is necessary as they benefit humans.11 More specifically, proponents have pointed to the myriad ways in which native species have

10_{Anne C. Bell, “Protecting the Tatshenshini: Wild Nature as Resource?,” in Canadian Issues in} Environmental Ethics, eds. Alex Wellington, Allan Greenbaum, and Wesley Cragg (Peterborough:

Broadview Press, 1997), 219-228. 11

Herman B. Leonard and Richard J. Zeckhauser, “Cost-Benefit Analysis Defended,” in The Environmental

Ethics & Policy Book: Philosophy, Ecology Economics, Third Edition. Eds. Donald VanDeVeer and

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been integral not only to Canada‟s agricultural, fishing and forestry sectors but also in the production of medicinal products, foodstuffs, and a variety of other essential materials including fuels, oils, and waxes. The extinction of any particular species, they remind us, may destroy a potential cure for cancer, or a disease-resistant crop that could end world hunger. While this approach has proven to be particularly useful in helping environmentalists forge inter-sectoral alliances with previously hostile interest groups, such as manufacturing and resource-sector representatives, this line of reasoning is inherently flawed. By focusing explicitly on the instrumental value of species when mounting their campaign for species protection, conservationists implicitly support the very developmental paradigm that is responsible for the destruction of species and their habitats. Accordingly, some advocates for the reform of Canadian endangered species legislation have pursued an alternative line of reasoning, one that focuses on the non-extractive uses of ecosystems.

Although this second approach is still rooted in anthropocentricism and an economic framework, it represents a fundamental shift from the direct utility of individual species to the indirect utility of entire ecosystems. This camp points to the fact that the biosphere is a life-support system that provides both the goods and services necessary for the health and well-being of all biological organisms, including human beings.12 Ecosystems generate and maintain soils, decompose wastes, pollinate crops, and reduce the severity of floods and droughts, all the while providing more intangible services that are linked to their aesthetic and cultural values. These latter two attributes are particularly pertinent within Canada, a country where the wilderness is not only a

12

Lilly-Marlene Russow, “Why Do Species Matter?,” in The Environmental Ethics & Policy Book:

Philosophy, Ecology Economics, Third Edition. Eds. Donald VanDeVeer and Christine Pierce (Belmont:

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condition of the landscape but also a state of mind; it has influenced our history, impacted our arts, and most importantly acted as a polysemic symbol that has shaped our national identity. Despite the utility of ecosystems, these services are not adequately captured in commercial markets and as such have historically been rendered inconsequential in policy decisions.

In an attempt to address this devaluing of ecosystem services inherent to the current politico-economic system, Costanza et al used a variety of valuation techniques to calculate the annual market value of the functions performed by the global biosphere in one calendar year.13 They estimated that as of 1997, global ecosystems provided at least US$33 trillion dollars worth of services annually – a staggering amount especially in light of the fact that the global gross national product for that same year was U.S. $18 trillion.14

Despite the irreplaceable nature of these services and their importance to human welfare, a number of opponents to policy reform remain sceptical of the necessity of protecting ecosystems. In Canada and elsewhere opponents of strong endangered species legislation argue that the protection of species at the expense of short-term economic development is unjustifiable due to the profound knowledge gap surrounding the ecological functions of most species, the possibility of functional redundancy within systems, and the fact that many species are not instrumentally valuable to humans. In response, environmental advocates have pursued a third line of reasoning, one that emphasizes the intrinsic value of species and their habitats.

13

R. Costanza et al, “The Value of the World‟s Ecosystem Services and Natural Capital,” Nature 387 (May 1997): 253-260.

14

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This third approach represents a fundamental shift from the previous two – no longer are conservationists suggesting that we need to save the world to save the people but rather that we need to save the world to save the world.15 This eco-centric argument is premised upon the notion that it is inherently wrong and morally repugnant for humans not to conserve biodiversity, regardless of its direct or indirect utility to humans.16 More specifically, these proponents argue that the long-established existence of species and habitats confers upon them an inalienable right to their continued existence. Biologist David Ehrenfeld contends, for example, that ecosystems, as products and processes of evolution, “should be conserved because they exist”.17

Although some critics have asserted that humans‟ superior mental and physical capabilities justify their domination of others, adherents to the eco-centric approach argue it is this very “characteristic ability for forethought” that requires humans to behave in a morally responsible manner towards their fellow species.18

Although the three aforementioned arguments for protecting species have been presented here as being distinct from one another, they are not mutually exclusive. In fact, the entire complex of values encompassed by the Canadian wilderness – the economic, scientific, ecological, aesthetic, cultural and intrinsic – formed the foundation of environmentalists‟ arguments for the necessity of strong federal endangered species legislation.

15

M. Soule, “Protected Areas and the Bottom Line,” Keynote address at the Canadian Council on Ecological Areas Conference, Fredericton, N.B., September 15-17, 1997.

16

Paul W. Taylor, “The Ethics of Respect for Nature,” in The Environmental Ethics & Policy Book:

Philosophy, Ecology Economics, Third Edition. Eds. Donald VanDeVeer and Christine Pierce (Belmont:

Wadsworth/Thomson Learning, 2003), 203-204.

17_{David W. Ehrenfeld, “The Conservation of Non-Resources,” American Scientist 64 (1976): 654.} 18

Karen Beazley, “Why Should We Protect Endangered Species? Philosophical and Ecological Rationale,” in

Politics of the Wild: Canada and Endangered Species, eds. Karen Beazley and Robert Boardman (Toronto:

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Theoretical Framework

To trace accurately the political developments of legislative protection for endangered species in Canada, two frames of analysis are employed. First, the policy cycle model developed by Howlett, Ramesh and Perl is used to disaggregate and simplify the policy-making process associated with Canada‟s federal endangered species legislation for analytical purposes.19 Like earlier “stagist” models20 Howlett, Ramesh and Perl‟s policy cycle evokes policy-making as a fairly sequential process made up of interrelated yet discrete stages, each of which can be treated independently or as part of a larger whole. In this model there are five distinct stages: (1) agenda-setting which refers to the conflictive and competitive process by which issues end up gaining the attention of policy elites; (2) policy formulation which refers not only to how policy solutions are devised by government actors but also the way in which particular policy alternatives are excluded from consideration; (3) decision-making which is the process by which senior governmental decision-makers choose the best strategy of action (or inaction); (4) policy

implementation which refers to how the selected policy is put into effect by government,

either elected officials or bureaucratic offices; and lastly (5) policy evaluation which refers to the systematic collection and analysis of evidence of the final results of policies, especially in relation to their stated goals. This final stage of the policy cycle may generate feedbacks; monitoring and evaluation of policy outcomes often leads to the re-conceptualization of both policy problems and solutions which ultimately results in an ongoing reformulation of the cycle itself. While the policy cycle framework is a useful

19_{Michael Howlett, M. Ramesh, and Anthony Perl, Studying Public Policy: Policy Cycles and Policy} Subsystems, 3rd ed. (Toronto: Oxford University Press, 2009), 10-14.

20_{Gary Brewer, “The Policy Sciences Emerge: To Nurture and Structure a Discipline,” Policy Sciences 5 no.} 3 (1974): 239-244; Harold D. Lasswell, “The Policy Orientation,” in The Policy Sciences: Recent

Developments in Scope and Method eds. D. Lerner and H.D. Lasswell (Stanford: Stanford University Press,

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tool for disaggregating the complex policy development process, it has two significant shortcomings.

First, it underemphasizes the potential significance of the passage of policy into law. Using the Species at Risk Act to illustrate, I argue that the shift from pre- to post-passage politics can force engaged interest groups to face a fundamentally different set of political challenges. This in turn affects their ability to mobilize resources, their strategic repertoires, and their access to various institutional venues. In order to capture the significance of this point in the policy cycle, this thesis is centrally organized around the concepts of pre-passage and post-passage politics. The former encompasses the agenda-setting, policy formulation and decision-making stages of the policy cycle, while the latter includes the implementation and policy evaluation stages.

Secondly, while the policy cycle framework is useful in explaining policy process, it is comparatively less successful in accounting for the content of governmental policy.21 In an attempt to address this shortcoming, the policy regime framework developed by Hoberg is used as a supplementary lens of analysis.22 The development of theoretical frameworks that explain why a particular policy was adopted by a government has been limited at best. Previous attempts at developing a sound causal theory for policy outcomes have typically mirrored the theoretical developments characteristic of the broader political science discipline; more specifically, they lurched from societal-based explanations in the years preceding the 1980s, to institutionally-focused theories in the 1980s and then shifted toward a greater focus upon the explanatory power of ideas by the

21

S. Everett, “The Policy Cycle: Democratic Process of Rational Paradigm Revisited,” Australian Journal of

Public Administration 62, no. 2 (2003): 65-70. 22

George Hoberg, “Policy Cycles and Policy Regimes: A Framework for Studying Policy Change,” in In

Search of Sustainability: British Columbia Forest Policy in the 1990s, eds. Benjamin Cashore, et al.,

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1990s.23 In contrast, the policy regime framework developed by Hoberg is a comprehensive, multi-causal theory that can be used to illuminate each stage of the policy cycle. More specifically, this framework suggests policy content is the product of the interaction between the background conditions that shape the political environment, and three distinct, yet interrelated components, namely actors, institutions, and ideas.24

According to the policy regime framework, actors are those “individuals and organizations, both public and private, that play an important role in the formulation and implementation of public policies”.25

These actors typically are aggregated into what Sabatier has termed „advocacy coalitions‟, which are groups of individuals “from various governmental and private organizations who share a set of normative and causal beliefs and who often act in concert.”26 However, unlike pluralist theorists, who suggest governmental policies reflect an equal distribution of power throughout society, Hoberg maintains advocacy coalitions are in fact situated on an uneven playing field, which inevitably affects their ability to transform policy preferences into favourable policy outcomes.27 In particular, he distinguishes between on the one hand, governmental actors and business interests who derive authority from both their political power and control over the market economy, and on the other private actors who need to supplement their peripheral power location by mobilizing other resources such as money, media attention or scientific expertise.

23_{Hoberg, “Policy Cycle,” 8.} 24

Ibid., 10. 25_Ibid. 26

Paul A. Sabatier, “An Advocacy Coalition Framework of Policy Change and the Role of Policy-Oriented Learning Therein,” Policy Sciences 21, (1988): 133.

27

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In the debates surrounding the passage of Canadian federal endangered species legislation, two distinct advocacy coalitions emerged. The first will be referred to as the strong endangered species advocacy coalition. It supported robust federal legislation for the protection of species at risk and was comprised of environmental interest group members and a number of experts from both the legal and scientific communities. It also had a number of allies within Environment Canada.28 In contrast, the second coalition, referred to as the weak endangered species advocacy coalition, was dominated by business interests, including resource industry representatives, landowners, and agricultural groups. This advocacy coalition drew support from more development oriented bureaucracies in various natural resource departments, including the Department of Fisheries and Oceans and the Department of Agriculture and Agri-Foods.29 Generally speaking, these actors favoured a considerably weaker version of the proposed endangered species legislation – one that promoted voluntary stewardship initiatives rather than strict government regulation.

While each advocacy coalition made a number of substantial contributions to the policy process, the behaviour of these actors was inevitably influenced by the second component of the policy regime framework – institutions. According to the policy regime framework, institutions are “the rules and procedures that allocate authority over policy and structure relations among various actors in the policy process”.30

More specifically, Hoberg suggests that institutions affect policy outcomes in two particular ways. First,

28_{Interview with ENGO representative. April 8, 2011. All interviews were conducted in confidence, and} unless the interviewee waived confidentiality protections, the names of interviewees are withheld by mutual agreement.

29 Ibid.

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rules and procedures affect how non-governmental actors participate in the policy process. In Canada, for example, the executive-dominant, Westminster style government has serious repercussions that are felt throughout the policy cycle. The strict party discipline, distinct lack of independent parliamentary behaviour, and the overwhelming concentration of power at the apex of government limits the number of access points available to engaged interest groups, and therefore their ability to influence the agenda setting and policy formulation stages of the policy cycle. Rather than exclude ENGOs from the decision-making process, however, the institutional biases have encouraged ENGOs to develop strategies that will help them overcome the obstacles faced by non-governmental actors. The more successful have become experts at galvanizing public awareness and mobilizing mass support in order to pressure government from the bottom up.

In addition to affecting how non-governmental actors participate in the early stages of the policy cycle, Canada‟s parliamentary democracy has also affected how interest groups participate in the post-passage phase. The fusion of the legislative and executive functions in Canada tends to yield policies cast in highly discretionary language as legislators from the government benches are reluctant to limit the discretion of the executive branch. By relying on language that permits but does not compel executive action, however, legislators limit the tactics available to interest groups in the implementation stage of the policy cycle. Without firm regulatory standards or mandatory duties outlined in non-discretionary language, there exists no legal recourse if the government fails to effectively enforce or implement the law.

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While the impact of these features of the institutional setting on the policy process is ever-present, it is particularly significant when there exists little governmental appetite for major policy change, as was the case in the period prior to the passage of Canada‟s federal endangered species legislation. In 1992 Environment Canada officials made their position on the need for federal endangered species legislation clear at a Parliamentary Committee hearing when they testified that “it is not necessary... to enact new laws to enable the Convention [on Biological Diversity] to be implemented by Canada.”31

This position was later confirmed in the fall of 1993 at a meeting between engaged ENGOs and senior officials from Environment Canada.32

According to Hoberg, the second way institutions affect policy outcomes is by structuring both intergovernmental and intragovernmental relations.33 For example, Canada‟s decentralized federal system has historically imposed a number of political and constitutional limits on the central government‟s ability to exercise power. In fact, the reluctance of the federal government to encroach upon provincial jurisdiction was a key factor that shaped the development of the Species at Risk Act. Although these institutions are often considered static in nature due to the inertia “created by the legacy of past policy choices”, Hoberg claims these institutional rules are in fact dynamic processes that evolve as a result of their interaction with both actors and ideas. 34

31

Canada, Parliament, Minutes of Proceedings and Evidence of the Standing Committee on Environment, 34th Parliament, No. 47, (November 23 1992).

32

Elgie, “The Politics of Extinction,” 200. 33_{Hoberg, “Policy Cycle,” 11.}

34

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As the third component of the policy regime framework, Hoberg defines ideas as the “causal and normative beliefs about the substance and process of public policy”.35

More specifically, normative beliefs can be conceptualized as those principles “that speak to ends”; they are used to distinguish right from wrong, or just from unjust, and as such often become deeply embedded in policies and institutional rules. For example, the idea that the current rate of species extinction is unjustifiable was a powerful cognitive factor that not only mobilized interest groups but subsequently came to dominate the agenda-setting stage of the policy process. Ultimately this idea became embedded in the Species at Risk Act itself. By comparison, causal beliefs “speak to means”; they are used by decision makers as a guide to achieving their policy objectives especially in the policy formulation and decision-making stages of the policy cycle.36 According to Haas, causal beliefs tend to be particularly potent when derived from an expert or epistemic community.37 For example, conservation scientists were actively involved throughout the development of the Canada‟s federal endangered species legislation and had considerable success in influencing key provisions of the Species at Risk Act.

While the three interrelated regime components outlined above are key to understanding why governments adopt particular policies, it is impossible to explain policy outputs without also examining background conditions. In fact, Hoberg suggests that significant policy change is highly unlikely in the absence of upheaval in the background conditions.38 In particular, he focuses on how public opinion, elections,

35

Hoberg, “Policy Cycle,” 11. 36_Ibid.

37

Peter M. Haas. “Introduction: Epistemic Communities and International Policy Coordination,” International

Organization, 46, no. 1 (1992), 3. 38

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international developments, and economic conditions can each have a significant impact on the regime dynamic. Significantly, in the case of Canada‟s Species at Risk Act, developments on the international stage not only provided the impetus for the push for federal legislation but continued to shape the pre-passage politics of the Act.

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Chapter Two: Pre-Passage Politics of the Species at Risk Act

Although the Species at Risk Act was not formally passed by Parliament until 2002, the momentum toward federal protection for species at risk had been building for decades. In light of this prolonged pre-passage period one might assume it would be impossible to discern any overarching commonalities between the early agenda setting, policy formulation, and decision-making stages of the policy cycle. With respect to Canada‟s endangered species legislation, however, a number of recurrent trends emerged. Not only did a small group of major environmental interest groups remain consistently active throughout the pre-passage period, but this collection of organized interests also encountered similar obstacles, employed comparable strategies, and selected similar venues for their targeted efforts.

Using the policy regime framework, this chapter details the developments of the pre-passage politics phase, including the three failed legislative attempts to obtain federal endangered species legislation. Divided into six sections, each of which represents a critical stage in the Act‟s policy cycle, this chapter highlights the institutions at play, the role of ideas, the impact of background conditions, and most importantly the impact of strategic actors throughout the pre-passage politics phase. In order to assess the effectiveness of ENGOs‟ strategic approaches in the early stages of the policy cycle, this chapter evaluates the final product of ENGOs‟ efforts – the Species at Risk Act. In short, this chapter is a critical component of the thesis. The detailed analysis of the pre-passage events serves as a useful comparison that is used to evaluate the comparable success of ENGOs‟ strategic venue shifts in the post-passage phase of the Act.

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Agenda Setting: Getting Endangered Species onto the National Agenda

In 1968, the world‟s first piece of endangered species legislation was passed in the United States. Significantly strengthened in 1973, the US Endangered Species Act (ESA) is now one of the most powerful regulatory tools at the disposal of the U.S. federal government. Unfortunately for species at risk found north of the 49th parallel, however, Canadian protection efforts have been comparatively slow, as the responsibility for the protecting endangered species has been shirked by both federal and provincial levels of government. Under the constitution, species at risk protection falls under both provincial and federal jurisdiction. In particular, ownership of extensive Crown resources gives the provinces the authority to manage resident species found on Crown lands, while control over fisheries and the “Empire treaty” power gives the federal government control over aquatic species and migratory birds, respectively.39 However, it is important to note this understanding is itself contested; according to some it reflects an exceedingly narrow interpretation of federal environmental authority. Some constitutional experts argue federal protection of all endangered species is constitutionally justifiable under the trade and commerce, criminal law, and peace, order and good government clauses of the Constitution Act of 1867.40

This interpretation notwithstanding, the federal government has historically deferred to provincial leadership when it comes to protecting species at risk. The provinces, unfortunately, have been slow to occupy the field. By the mid-1970s only

39_{Canada, Parliament, Minutes of Proceedings of the House of Commons Standing Committee on}

Environment and Sustainable Development. 37th Parliament, 1st Session, (Meeting No. 15, April 26, 2001) accessed January 16, 2011,

http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=37&Ses=1&DocI d=1040721&File=0. According to the Canadian constitution, treaties negotiated by Great Britain before 1931 are treated as matters of federal jurisdiction. Since the Migratory Birds Convention Act was signed in 1916 the matter of migratory bird protection is within the purview of the federal government.

40

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Ontario (1971) and New Brunswick (1973) had implemented endangered species legislation. Even in these provinces, however, the legislation provided environmentalists with a false sense of security that was belied by ineffectual enforcement. Undeterred by the lack of political leadership on the endangered species protection front, two major environmental non-governmental organizations decided to take the lead in the protection of Canadian wildlife.

Buoyed by the increasing scientific and public concern for endangered species that followed in the wake of Rachel Carson‟s Silent Spring, the Canadian Nature Federation and the World Wildlife Fund Canada sponsored a national symposium in May 1976 that brought together public and private actors.41 Rather than focus on the divisive subject of the need for legal reform, the conference instead emphasized the necessity of developing scientifically-sound information that could be used to assess the status of species at risk.42 Significantly, one year later the convention the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) was established by the federal government. Comprised of experts from both levels of government, academia, conservation organizations, and representatives of Aboriginal communities, COSEWIC had an immediate impact on the issue of endangered species. Its reports not only identified those areas that required immediate protection but more significantly helped create a sense of urgency about the extinction crisis as the number of species at risk

41_{Interview with Nature Canada representative. April 8, 2011. All interviews were conducted in confidence,} and unless the interviewee waived confidentiality protections, the names of interviewees are withheld by mutual agreement.

42

Stephen Bocking, “The Politics of Endangered Species: A Historical Perspective,” in Politics of the Wild:

Canada and Endangered Species, eds. Karen Beazley and Robert Boardman (Toronto: Oxford University

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climbed steadily every year.43 In fact, in light of the data collected by COSEWIC, the Canadian Wildlife Service shifted its focus in the late 1980s from identifying endangered species to attempting to restore them.44

In 1988, upon the recommendation of the Canadian Wildlife Service, a new national strategy aimed at coordinating the species-recovery efforts of nongovernmental organizations and both levels of government, was established.45 The Recovery of Nationally Endangered Wildlife (RENEW) was responsible for the development of recovery plans for those species identified by COSEWIC as at-risk. Although an admirable attempt to encourage intergovernmental and public-private cooperation in the protection of species, RENEW‟s success was limited due to basic features of the program itself. With no legal authority and inadequate funding, RENEW‟s efforts ultimately became subject to the vagaries of the political process. In fact, by 2000 RENEW had completed only eighteen recovery plans for terrestrial vertebrates. This represented only 4.5 percent of the three hundred fifty-three taxa that had been included on COSEWIC‟s list of species at risk for the same year.46 Thus despite efforts to do otherwise, the regulatory gaps resulting from the provincial patchwork of legislative protection persisted well into the 1990s, rendering Canada‟s endangered species increasingly vulnerable to extinction.

43_{Stephen Bocking, “The Politics of Endangered Species: A Historical Perspective,” in Politics of the Wild:} Canada and Endangered Species, eds. Karen Beazley and Robert Boardman (Toronto: Oxford University

Press, 2001), 128. 44_Ibid.

45 Ibid.

46_{Bill Freedman et al, “Species at Risk in Canada,” in Politics of the Wild: Canada and Endangered Species,} eds. Karen Beazley and Robert Boardman (Toronto: Oxford University Press, 2001), 26.

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In June 1992, Canada made a significant step towards enacting endangered species legislation. At the United Nations Conference on Environment and Development in Rio de Janeiro, Canada became the first industrialized nation to sign the Convention on Biological Diversity (CBD) – an international, legally-binding treaty designed to protect the Earth‟s ecological foundation through the promotion of sustainable development. Although considered a landmark treaty for its recognition that conservation efforts are “a common concern of humankind”, the most significant provision of the CBD for Canadian environmental policy was Article 8(k).47 This provision states that signatories shall, as “far as possible and as appropriate... develop or maintain necessary legislation for the protection of threatened species and population”.48

This provision was subsequently interpreted by Canadian ENGOs to mean that the federal government was required to pass legislation that would protect Canada‟s endangered wildlife. Significantly, the House of Commons Standing Committee on the Environment, charged with determining how to implement the treaty, agreed with the ENGOs.49 However, with little federal incentive to initiate legal reform and with a particular reluctance from Environment Canada, environmental interest groups advocating for federal endangered species legislation had to mobilize other resources in an attempt to counter the path dependent tendencies of the newly elected Liberal majority.

Recognizing that their efforts could be undermined by the fragmentation of the environmental movement, Ecojustice (formerly the Sierra Legal Defence Fund) along

47

United Nations. “Convention on Biological Diversity,” 1992. Accessed December 12, 2010

http://www.cbd.int/doc/legal/cbd-en.pdf

48 Ibid.

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with the World Wildlife Fund, Canadian Nature Federation, Sierra Club, l'Union Québécoise pour la conservation de la nature, and the Canadian Parks and Wilderness Society formed the Canadian Endangered Species Coalition (CESC) in 1994.50 It dedicated itself to pushing for federal endangered species legislation. Undeterred by the fact that species protection was a low salience issue amongst the electorate and parliamentarians, the CESC initiated a nation-wide public awareness campaign in an attempt to mobilize Canadians and convince vote-seeking politicians that endangered species protection was an issue that needed to be on the political agenda. More specifically, the coalition‟s six-member steering committee activated their respective organizations‟ members and built a broad base of support across various geographic regions and societal sectors. By the end of 1994 CESC had become a peak association supported by more than one hundred professional organizations, ranging from physicians and farmers, to churches and labour unions.51

The coalition‟s second strategy was actively to encourage and help supporters lobby the federal government directly for legislative reform. The coalition published newsletters and magazine articles, distributed petitions, and organized letter writing campaigns. In fact, with the help of a large corporation, The Body Shop, and OWL Magazine, the CESC collected over 75,000 signatures on a petition demanding the federal government enact strong endangered species legislation. It also galvanized 2000 children to write letters to the federal government explaining why it should protect

50_{Elgie, “The Politics of Extinction,” 200.} 51

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species at risk.52 Significantly these mobilization efforts proved to be critical in securing a firm government commitment to policy reform; just eight months after the formation of the CESC, Minister of Environment Sheila Copps announced her plan to introduce a draft Bill within one year.53

Formulating a National Policy

Despite this commitment from the government, the CESC remained wary of Environment Canada‟s ability to draft a strong endangered species bill. Instead the CESC advocated for the creation of a multi-stakeholder taskforce. In its view, this taskforce would not only help develop legislative recommendations but also, more importantly, it would prevent the polarization between industry and environmental interest groups that occurred as a result of the American implementation of the ESA.54 Minister Copps agreed and in March 1995 the Endangered Species Task Force was created.55 This taskforce was comprised of representatives from the forestry, mining, oil and gas, and agricultural industries as well as scientists and members of environmental interest groups. It was tasked with the responsibility of developing recommendations for federal species-at-risk legislation. Unfortunately, however, before the taskforce could release its recommendations, the federal government issued its own draft proposal.56 The proposed bill was very weak. It was restricted to federal lands, failed to include mandatory habitat

52

Alex Wellington “Endangered Species Policy: Ethics, Politics, Science and Law,” in Canadian Issues in

Environmental Ethics, eds. Alex Wellington, Allan Greenbaum, and Wesley Cragg (Peterborough:

Broadview Press, 1997), 212.

53_{Elgie, “The Politics of Extinction,” 200.} 54

William Amos, Kathryn Harrison, and George Hoberg, “In Search of a Minimum Winning Coalition: The Politics of Species-At-Risk Legislation in Canada,” in Politics of the Wild: Canada and Endangered

Species, eds. Karen Beazley and Robert Boardman (Toronto: Oxford University Press, 2001), 141. 55_{Elgie. “The Politics of Extinction”, 201.}

56

Interview with ENGO staff lawyer. February 24, 2011. All interviews were conducted in confidence, and unless the interviewee waived confidentiality protections, the names of interviewees are withheld by mutual agreement.

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protection, and mandated recovery plans which were based on political, not scientific considerations.57 In short, the draft revealed not only the government‟s narrow conception of its role in protecting Canadian wildlife, but also a complete disregard for the contributions of the Taskforce. Enraged by the government‟s dismissal, ENGOs intensified their efforts for endangered species legislation.

Although ENGOs found the government‟s policy proposal to be unacceptable, it proved to be invaluable to their campaign. First and foremost, ENGOs used the opportunity to develop a media release that presented their side of the story. They briefed media about the importance of species protection and the shortcomings of the government‟s proposal.58

Confirming Hoberg‟s claims about the influence of ideas on the policy outcome, these ideas proved to be a powerful cognitive factor in advancing more prescriptive legislation. The species at risk issue gained front-page coverage in many newspapers, including the nationally-distributed Globe and Mail. This not only ensured the issue was now on the media‟s radar but more importantly helped galvanize public support for stronger legislation. Secondly, the policy proposal proved to be a rallying cry for the scientific community. With the help of the CESC, Canadian scientists organized a sign-on letter that denounced the draft Bill and called for key amendments, especially with respect to habitat protection. By the time of its release in November 1995, the letter had been signed by over two hundred scientists and proved to be a powerful resource for environmentalists.59 Coming from a respected epistemic community, the ideas and

57_{Environment Canada, The Canadian Endangered Species Protection Act: A Legislative Proposal (Ottawa:} Environment Canada, 1995).

58

Interview with ENGO staff lawyer. February 24, 2011. All interviews were conducted in confidence, and unless the interviewee waived confidentiality protections, the names of interviewees are withheld by mutual agreement.

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position of the scientific community resonated with the Canadian public and made national news. Lastly, the proposal also revealed the federal government‟s narrow interpretation of its constitutional authority to protect those species that reside outside of federal lands or waters. Focusing on this shortcoming, the coalition sought to shore up its legal arguments surrounding federal jurisdiction over endangered species legislation. The Sierra Legal Defence Fund took the lead, enlisting constitutional law expert Dale Gibson to write a legal opinion. Gibson concluded that the “federal government had solid constitutional powers to protect all endangered species”.60

Against the backdrop of this constant public mobilization, ENGOs and other taskforce members continued to meet regularly and eventually reached some consensus regarding the necessary elements of effective species protection law.

Initially, industry and environmental groups involved in the Task Force were polarized on the issue of federal endangered species legislation, a disagreement which reflected the impact of one component of the policy regime framework – the ideational context. According to Illical and Harrison, Canadian policy actors engaged in the species-at-risk issue were heavily influenced by policy developments south of the border. More commonly referred to as cross-national “lesson-drawing”, scholars suggest policy actors regularly examine the developments in other jurisdictions in order to derive “practical conclusions about the effectiveness of a program and its transferability to one‟s own political system”.61

It is important to note, however, that policy actors not only draw positive lessons from other jurisdiction but negative lessons as well. While noting that the

60

Elgie, “The Politics of Extinction,” 202.

61_{Colin J. Bennett, “The Formation of a Canadian Privacy Policy: The Art and Craft of Lesson-Drawing,”} Canadian Public Administration, 33 no. 4 (2008), 554.

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concept is theoretically and empirically underdeveloped concept, Illical suggests negative lessons are examples of “policy failure that show countries what not to emulate”.62 In short, cross-national learning proved to be a particularly potent idea in the policy formulation stage of the policy cycle.

With nearly three decades of experience with its Endangered Species Act, the United States‟ experience was an important source of positive and negative lessons for Canadian environmentalists and business interests respectively. From the outset, environmentalists on the Task Force demanded that federal legislation include mandatory protection provisions that were comparable to those outlined in the ESA. In particular, ENGOs advocated for a strictly scientific listing process, mandatory production of recovery plans for all listed species, and a strict regulatory approach that prohibits harming a listed species and its critical habitat.63 In contrast, however, industry representatives on the Task Force were highly critical of the ESA. Pointing to the US experience with the ESA, they argued that non-discretionary endangered species legislation would not only open the floodgates to excessive public interest litigation but more significantly have a crippling impact on the Canadian economy.64 Strong federal endangered species legislation would lead to job losses in the natural resources sector and precipitous declines in land values. Therefore in an attempt to avoid the apparent economic repercussions of strong endangered species legislation, industry representatives on the Task Force instead favoured legislation that emphasized voluntary, subsidized

62

Mary Illical, “How They Built the Ark: Comparing Federal Endangered Species Legislation in the United States and Canada,” (Master‟s Thesis, University of British Columbia, 2005), 21.

63

Mary Illical and Kathryn Harrison, “Protecting Endangered Species in the US and Canada: The Role of Negative Lesson Drawing,” Canadian Journal of Political Science, 40 no. 2 (2007), 388.

64

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stewardship initiatives – a position which stood in stark contrast to that of the environmental community.

Despite the early polarization of the Task Force, by May 1996, the two groups of actors had found a middle ground. In fact, in a report the Task Force detailed three primary points of agreement: (1) the decision to list a species should be based on scientific not political concerns and therefore should be made by COSEWIC as opposed to elected officials; (2) protection of critical habitat should be mandatory, albeit only after it had been identified in a recovery plan (as opposed to at the time of listing), and (3) the proposed law should be applied to the full extent of the federal government‟s jurisdiction, including cross-border species.65 Despite the fact that a group of cross-sectoral representatives were able to reach an agreement regarding endangered species legislation, federal and provincial government actors proved to be less successful in reaching agreement. In fact, communication between the two levels of government eventually broke down in the policy formulation process primarily due to intense jurisdictional conflict.

According to the policy regime framework, in order to understand the behaviour of these government actors, one must consider both the institutional context in which they operated and the prevailing background conditions. In particular, the Bill was developed at the height of tension between the federal and provincial governments. In an atmosphere shaped by Mulroney‟s failed constitutional reform efforts and the 1995 referendum in Quebec, Environment Canada could not risk alienating the provinces by overstepping its jurisdictional boundaries. Furthermore, Environment Canada was also in

65_{Task Force on Endangered Species Conservation, Report on Federal Endangered Species Legislation,} (Environment Canada, May 1996).

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the final stages of negotiating the Canada-Wide Accord on Environmental Harmonization and considered the proposed endangered species legislation to be a potential threat to the delicate detente they had reached with the provinces.66 In an attempt to overcome this jurisdictional gridlock, Environment Minister Sergio Marchi (Sheila Copps‟ successor) proposed the National Accord for the Protection of Species at Risk. 67 It sought to ensure cooperation among the federal, provincial, and territorial governments by committing them to pass complementary legislation that would ensure the protection of wildlife species throughout Canada. In short, Marchi‟s Accord prevented the escalation of jurisdictional conflict, which allowed him to move forward with the necessary policy reform.

Decision-Making (Part I): Bill C-65

After four years of extensive stakeholder input and nationwide debate, the federal government finally tabled Bill C-65, the Canada Endangered Species Protection Act (CESPA), in the House of Commons on 31 October 1996. Heralded by the Minister of the Environment as a “comprehensive national framework for action”, Bill C-65 was attacked by all the stakeholders.68 Despite the government‟s rhetoric regarding the important contributions to be made by a consensus-based consultative process, such as the Endangered Species Task Force, the proposed bill failed to incorporate many of the Task Force‟s recommendations. While CESPA did formalize the role of COSEWIC in the identification of species at risk, the bill granted the Minister of Environment the

66

Robert Boardman, “Canada‟s Threatened Wildlife: Civil Society, Intergovernmental Relations, and the Art of the Possible,” in Canadian Environmental Policy: Context and Cases, Second Edition, Eds. Debora L. VanNijnatten and Robert Boardman (Toronto: Oxford University Press, 2002), 313.

67_{Amos, Harrison, and Hoberg, “In Search of A Minimum Winning Coalition,” 155.} 68

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authority to make the ultimate decision as to whether a species would be added to the List of Wildlife Species at Risk in Canada. This politicization of the listing process was seen as a major weakness in the proposal by environmentalists and scientists alike, as listing was a prerequisite for protection under the proposal.

Furthermore, the scope of Bill C-65 was seen as exceptionally narrow by proponents of strong legislative protection. If passed, it would apply only to federal lands, aquatic species, migratory birds already covered by the Migratory Bird Convention Act (MBCA), and those species that crossed international borders. For species found on provincial or private lands, the federal government would defer to provincial authorities. Once a species was listed, CESPA made it illegal to kill or destroy the „residence‟ of the species – a provision which proved to be particularly contentious within the scientific community. According to scientists the term „residence‟, which was defined by CESPA as “a dwelling-place, such as a den, nest or other similar area” is not a biological concept.69 Instead they argued it was an artificial tool used by policymakers to narrow the scope of the Act. 70 More specifically, scientists pointed to the fact that species that do not have a den, nest or similar area, such as the Woodland Caribou, would be ineligible for protection under CESPA.71

On the one hand, environmentalists and scientists were outraged at the government‟s failure to mandate protection for critical habitat, while on the other hand, industry and landowners argued this provision demonstrated a clear prioritization of

69

David L. Vanderzwaag and Jeffrey A. Hutchings, “Canada‟s Marine Species at Risk: Science and Law at the Helm, but a Sea of Uncertainties,” Ocean Development and International Law 36 no. 3 (2005): 227. 70

Kate Smallwood. “A Guide to Canada‟s Species at Risk Act: A Sierra Legal Defence Fund Report,” (Vancouver: Sierra Legal Defence Fund, May 2003), 25.

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