by Aaron Holdway
Canada‘s Environment Minister admits that the situation of endangered species in Canada has reached crisis proportions. Yet after nearly a decade of half-hearted legislative work, including two pieces of abandoned legislation, the federal governmentâ€TMs ultimate product has been what environmentalists have widely denounced as the worldâ€TMs weakest endangered species legislation. While environmentalists wanted the Species at Risk Act to rely on penalties instead of voluntary measures, the government made landowners and industry the main beneficiaries of the legislation by introducing financial incentives for compliance. This decision to ignore compelling environmental arguments in favour of economic considerations is an example of how, in the formulation of Canadian public policy, economics almost always trumps the environment.
Although more than 350 endangered plants and animals live in Canada, many of them on the verge of extinction, [1] Canada has only in the past year enacted legislation to protect them. The governing Liberal Party has taken nearly a decade to introduce the Species at Risk Act (SARA) of 2002, allowing two previous attempts at such legislation to die when federal elections were called. Both these bills had met significant opposition. Environmentalists had complained strongly that the draft legislation applied only to federal land, leaving neighbouring habitat unprotected. Landowners and industry, on the other hand, had fiercely resented the lack of compensation for confiscated property and lost revenue incurred from protecting species at risk. Though these two arguments were ultimately incorporated into SARA, environmentalistsâ€TM criticisms of the legislation had gone much further, decrying all three bills as too weak and too dependent on voluntary efforts and financial incentives instead of penalties. The example of SARA, however, demonstrates that a myriad of criticisms does not necessarily mean all perspectives will be given equal consideration. The governmentâ€TMs decision to all but ignore the concerns of environmentalists in drafting SARA showed a desire to appear to have taken diverse arguments into account while still favouring economic considerations.
Although the process of enacting SARA was sluggish, the government had a number of strong motivations to enact such legislation. First, the situation of endangered species in Canada had been recognized as grave. The Committee on the Status of Endangered Wildlife in Canada (COSEWIC), an independent scientific panel, had noted that its lists of endangered species were only growing longer each year. [2] Federal Environment Minister David Anderson himself had said, “Thereâ€TMs no question we have a situation of crisis proportions. Thatâ€TMs why itâ€TMs so critically important to get legislation.†[3] Second, Canada was long overdue for federal legislation to protect its endangered species. The United States, for example, has had federal legislation for 30 years, having passed its Endangered Species Act (ESA) in 1973. Third, the government had identified widespread support for endangered species legislation. A 1999 poll, for example, found that 84% of Canadians supported the idea of species protection. [4] Fourth, the government wanted to portray a strong environmental image for the next election campaign. The Species at Risk Act would be the governing Liberal Partyâ€TMs only major environmental legislation, and its passage was meant to enhance the partyâ€TMs “green†credentials. Furthermore, the government had already twice failed to pass such legislation, and it knew it could not afford to fail a third time. Finally, and perhaps most importantly, Canada was under growing international pressure to meet its commitment to the United Nations Convention on Biological Diversity, which included a promise to enact legislation for the protection of endangered species. To appear legitimate on a number of fronts, then, the government knew it had to act on legislation to protect endangered species.
The government was interested primarily in appearances in enacting SARA, and the Liberals seem to have decided to pursue an image of environmental consciousness at the least possible risk of rankling powerful economic interests. Pressure from landowners and industry to have SARA offer compensation for expropriated land and lost revenue due to protecting endangered species, and to avoid stringently-enforced penalties for contradiction, ultimately trumped the concerns of environmentalists. Landowners and industry had pointed to the American experience with endangered species legislation, widely described by market liberals as draconian and even counterproductive. Proponents of an industry-friendly approach to SARA had focused on two key issues they said the USâ€TMs Endangered Species Act did not at all adequately address: compensation and cooperation.
Landowners and industry wanted SARA to compensate them for environmental restrictions imposed on their property. Neither the previous versions of SARA nor the American ESA provided for such compensation for loss of a propertyâ€TMs use. Although many environmentalists pointed out that Canadian law does not provide property owners with the right to be paid to comply with validly enacted laws that affect the market value of their property, [5] the government decided to favour the interests of industry by agreeing that landowners “should not be expected to carry alone the costs of a collective value.†[6] Although SARA neither requires compensation nor defines what such compensation might be, Environment Minister David Anderson has insisted that property holders will in practice be compensated, based on the revenue currently produced by their property. [7] Even the governmentâ€TMs own expert consultant, however, expressly recognizes that such compensation is a radical departure from past practice. In his February 2001 report on compensation, Peter Pearse states: “The courts and governments have historically drawn a distinction between expropriation of property, for which compensation is due, and restrictions on the use of property for some public purpose, for which compensation is generally not payable. Restrictions that might be imposed under the Species at Risk Act are of this regulatory type, so compensation for them conflicts with long established policy in Canada.” [8] In deciding to compensate landowners despite lack of precedent and despite vocal opposition from many environmentalists, the government showed a clear preference for economic considerations.
Landowners and industry also convinced the government to favour their interests by making SARA much more “cooperative†than its American counterpart. Critics pointed out that the ESA has caused thousands of American property owners to be partially or fully dispossessed by federal environmental authorities without compensation. [9] US federal authorities talk a great deal about “cooperation,†critics said, but in practice they punish “non-cooperation†with their immense legal and financial strength. [10] In drafting the ESA, American lawmakers recognized that genuine cooperation gives all parties the right to opt out freely and therefore decided to emphasize a “big stick†approach. Listening to the arguments from landowners and industry on this example, the Canadian government chose to emphasize cooperation in its legislation instead of coercion: “The reliance on voluntary measures and incentives distinguishes SARA from its counterpart in the United States, which depends on mandatory restrictions backed up by penalties,†says government consultant Peter Pearse. [11] The government will use its disciplinary power sparingly, Minister Anderson says, [12] adding that SARA is far better than the more punitive ESA: “An automatic system, which allows no involvement of people whose interests might be affected, is clearly unacceptable in a democracy.†[13] Furthermore, in the spirit of “cooperation,†the government also favoured landowners and industry by not allowing civil lawsuits under SARA. In the US, industry is subject to litigation triggered by the ESA. While the two abandoned bills that preceded SARA gave private individuals and organizations the right to sue, that right was removed in SARA. This was clearly agreeable to industry groups, and represented a vital concession to economic interests.
Had Canada not been able to look to the American experience, the government might have acted similarly. With the benefit of the American example, however, the government chose to follow a path that favoured economic considerations over rigorous species protection. In making this choice, the government knew it had to at least pay lip service to opposition from environmentalists. In the lead-up to the introduction of SARA in Parliament, Minister Anderson described the new legislation as “balanced,†saying that it respected all interest groups: “It is an approach that is fair, that is pragmatic, that respects the role of the provincial and territorial jurisdictions, that respects private landowners, and respects the rights of Aboriginal people,†he said. [14] In almost the same breath, however, the Minister said he would not entertain any major changes to the legislation at the parliamentary committee stage: “Weâ€TMve gone as far as we can to accommodate some very conflicting interests.†[15] Minister Anderson says SARA was subject to more consultation than any legislation he knew of, [16] and warned that any revisions would likely kill the long-beleaguered bill. [17] This is a clear indication that the government resolved not to be swayed from its preference for economic considerations in the formulation of SARA.
The governmentâ€TMs decision to act in a way that effectively ignored criticisms from environmentalists in favour of economic interests, while still trying to appear legitimate to the international arena and to the electorate, was surprisingly easy to accomplish. The government knew Canadian environmental activists must often restrict themselves to relatively subdued comments on the record, because many of their lobby groups depend on government goodwill in one way or another. [18] Furthermore, even though environmentalists were generally not looking for a duplicate copy of the American legislation, [19] the government was able to say that SARA had entertained more consultation than most other legislation, even if the government did not act on these criticisms. In the end, SARA became the industry-friendly legislation that powerful economic lobbies had advocated. This is just one of many examples of the preeminence that economic considerations receive in the formulation of Canadian public policy. Despite pressures to act in a particular way coming from concerned parties on all sides, the government almost invariably chooses a route that gives economic interests disproportionate favour.
- Aaron Holdway, Queenâ€TMs University, Canada
Footnotes
[1] Canadian Press, “Web Site Mocks ‘Chefâ€TM Jean Chrétienâ€TMs Endangered Species Recipe,†Canadian Press Newswire, 23 November 2000.
[2] Canadian Press, “Number of Canadian Species Endangered, Threatened or of Concern Rising,†Canadian Press Newswire, 3 May 2001.
[3] Canadian Press, “Web Site Mocks ‘Chefâ€TM Jean Chrétienâ€TMs Endangered Species Recipe,†Canadian Press Newswire, 23 November 2000.
[4] Gary Ball, “Whoa, Big Fella: Letâ€TMs Hope the Minister Wonâ€TMt Trample the New Endangered Species Law,†Outdoor Canada, Winter 1999, p. 20.
[5] Stephan Wood, “The High Price of Habitat Protection: Under the New Species at Risk Act, the Federal Government Would Compensate Landowners Whose Property Values Are Reduced by Habitat Protection Orders. This Is A Very Bad Idea,†Alternatives, Summer 2001, p. 9.
[6] Gary Ball, “Whoa, Big Fella: Letâ€TMs Hope the Minister Wonâ€TMt Trample the New Endangered Species Law,†Outdoor Canada, Winter 1999, p. 21.
[7] Mike Byfield, “A Land-Grab Takes Shape: Ottawa Announces it Has No Intention of Paying Market Value for Species-At-Risk Real Estate,†Report Newsmagazine, 19 June 2000, p. 37.
[8] Stephan Wood, “The High Price of Habitat Protection: Under the New Species at Risk Act, the Federal Government Would Compensate Landowners Whose Property Values Are Reduced by Habitat Protection Orders. This Is A Very Bad Idea,†Alternatives, Summer 2001, p. 10.
[9] Mike Byfield, “Whoâ€TMs Endangering Whom? Ottawaâ€TMs Species at Risk Act Shows Disturbing Parallels to its Draconian US Equivalent,†Report Newsmagazine, 23 October 2000, p. 19.
[10] Ibid.
[11] Mike Byfield, “SARA II Looks as Greedy as its Dead Sister: A Federal Species-at-Risk Bill Will Seize Control of Provincial and Private Lands,†Report Newsmagazine, 5 February 2001, p. 35.
[12] Mike Byfield, “The Mother of All Land Grabs: Ottawaâ€TMs Species At Risk Act Reduces Land and Resource Owners to Mere Tenants,†Report Newsmagazine, 8 May 2000, p. 11.
[13] “Enviro Groups Criticize New Endangered Species Legislation,†Natural Life, May/June 2000, p. 23.
[14] Carol Harrington, “Ottawa Announces Endangered Species Legislation,†Canadian Press Newswire, 17 December 1999.
[15] Kady Oâ€TMMalley, “Environmentalists Step up Lobby Campaign, to Target Committee,†Hill Times, 17 April 2000, p. 11.
[16] Canadian Press, “Canada Ranks Third from Top on Index of Environmental Sustainability,†Canadian Press Newswire, 1 February 2001.
[17] Canadian Press, “Anderson Says Heâ€TMll Consider Beefing up Endangered Species Bill,†Canadian Press Newswire, 19 September 2000.
[18] Dennis Bueckert, “Not a Single Environmental Group is Expected to Endorse Federal Endangered-Species Legislation about to Be Introduced by Environment Minister David Anderson,†Canadian Press Newswire, 24 February 2000.
[19] Ibid
Sat, Jan 3, 2004
Vision Journal