The U.S. Center for Biological Diversity recently filed a petition at the Commission for Environmental Cooperation, that Canada is not effectively enforcing the Species At Risk Act (SARA) by failing to list and protect the Polar Bear as an endangered or threatened species.  Currently, the Polar Bear is listed as a species of special concern.  SARA sets up a process for listing that is intended to be based on objective science (the Committee on the Status of Endangered Wildlife in Canada or COSEWIC).  Although COSEWIC’s last evaluation raised alarm bells about the future of Polar Bears, the Minister has not listed them.  There are continued controversies over which population units of the Bears should be protected and how.

What most commentators have missed in this debate is that SARA does not apply in Nunavut in the same way as the rest of Canada.  Subsection 35(3) of SARA provides that the provisions of SARA that protect a species residence or individuals do not apply in the territories (even on federal land) without a Cabinet Order.  This Order cannot be made without consulting the appropriate wildlife management board.  Similarly, section 39(1)(a) and (c) of SARA requires consulting that board and the territorial minister before a recovery strategy can be prepared.  Finally a recovery strategy or an action plan in a land claims area (which includes all of Nunavut) must be consistent with the land claims agreement under s.39(2) and s.48(2).

The 1993 Nunavut Land Claims Agreement contemplates Nunavut’s Wildlife Management Board having broad advisory powers over how wildlife is managed in Nunavut and this is one of the core terms of the Agreement.  Moreover, Nunavut has its own Wildlife Act, that governs the Board and addresses endangered species issues in a manner consistent with the land claim regime.  The endangered species provisions of the Nunavut Wildlife Act have never been used to my knowledge.

Currently hunting regulations recommended by the Nunavut Wildlife Management Board allow hunting of Polar Bears (total allowable harvest) based on assessments of potential population impacts.  These are reviewed by the Board and recommended to government.  Inuit often argue forcefully for the board to reject hunting restrictions and argue for alternate population evaluations.  A higher listing in SARA will not change this dynamic before the Board.  The provisions of the land claim are comprehensive, except that the Board does not have jurisdiction over habitat, which is left to other co-management Boards under the land claim.

In light of the special limitations of SARA in the arctic it is not entirely clear how SARA can be effectively applied in Nunavut to protect Polar Bears, or indeed species like Peary Caribou.  On the other hand, it is clear that Nunavut is not well placed to protect Polar Bears using a Board with no jurisdiction over habitat protection generally (let alone global climate change) and that is subject to complex political pressures around hunting.

Those that advocate for higher listing may be disappointed with the result as under SARA the land claim provisions trump the usual protections for endangered species.  In order to protect Polar Bears under SARA the Inuit and the territory would need to agree and cooperate.  A more effective approach would be greater public involvement in Polar Bear hearings before the Wildlife Board, and more direct forms of climate change actions to address habitat.

Filed in: Energy and Resources, Environment

Tags: Arctic, Climate change, Environmental law, Nunavut, Nunavut land claims agreement, Petition, Polar Bear, SARA, Species at Risk, Species listing, Wildlife, Wildlife Act