Species at Risk
Act: Program
Guidance
A GUIDE TO THE CRITICAL
HABITAT PROVISIONS OF THE
Species at Risk Act.
November 2004
Environment Canada
Fisheries and Oceans
Canada
Parks Canada Agency
The Critical Habitat Provisions of SARA
Executive Summary
This document provides guidance to recovery planners and Departmental Staff in
the implementation of the Species at Risk Act (SARA). Bringing a level of nationwide consistency and comparability, the document sets out the responsibilities
and accountabilities for recovery planners and Departmental Staff involved in
critical habitat identification and protection, and related recommendations to the
competent minister. For clarity, the content of this document is not a guideline,
which may or may not be followed; rather, it is to be considered program
direction. Variances from the guidance contained herein, where deemed
necessary, should be discussed with the appropriate national headquarters
policy staff.
The guidance within this document is, in turn, guided by the intent of SARA: to
prevent Canadian species from becoming at risk and to provide for their
recovery; to do so in a manner that recognizes the shared responsibility for
conservation of wildlife in Canada; and to work toward those goals, remembering
that cooperation and stewardship are the first approach to any activity under
SARA.
SARA describes critical habitat as:
“….the habitat that is necessary for the survival or recovery of a listed wildlife
species and that is identified as the species’ critical habitat in a recovery strategy
or in an action plan for the species.”
Identification of Critical Habitat
The ultimate responsibility and accountability for identifying critical habitat lies
with the competent minister; the recovery planner provides advice to the
competent Minister on format and content of the formal identification.
This guidance document sets out that identification of critical habitat should be
considered a process—a series of steps that refines the habitat aspect of the
recovery needs of a species at risk at each level. While SARA does not
absolutely require that critical habitat be identified in a Recovery Strategy, it must
be identified by the time an Action Plan is developed. The steps in identifying
critical habitat are:
1. Description of the Biophysical Attributes
2. Location, to the greatest extent possible, of all habitat in the range
3. Determination of the habitat required to meet the population target
4. Determination of critical factors
5. Formal identification in the Recovery Strategy, Public Registry and
Canada Gazette
i
All known landowner(s) of properties containing critical habitat must be notified
by registered mail, or a similar verifiable method, of the existence and extent of
critical habitat on their lands.
Surveying and Mapping
Surveying and mapping are used as operational program tools. They are useful
and often necessary in the identification of habitat, its location and
characteristics. Critical habitat surveys will be conducted using the best available
defensible science, by professionally trained individuals, while respecting the
rights of landowners. The surveying results will be merged with information from
stakeholder consultations and traditional/informal knowledge.
Mapping will conform to the standards laid out in the Technical Guidelines for
Species at Risk Critical Habitat and Residence Mapping. The Guidelines make
references to the level of detail required in the maps, map scales and labeling.
Mapping is a useful tool in quantifying and labeling critical habitat. Both surveys
and mapping should be undertaken with the best possible technology and
procedures available, and there should be reviews every five years, or less if
there can be rapid change expected to the critical habitat area.
Critical Habitat Protection Direction and Procedures
These directions and procedures serve as a guide to Departmental staff who
must make a recommendation to the Minister on the subject of whether critical
habitat is “effectively protected.” The Minister will use this advice in deciding on
the options: a) to recommend to the Governor in Council that the Safety Net
order be made; and/or b) to make an Order prohibiting critical habitat destruction
(depending upon the situation).
Effective protection is defined, for purposes of the national program direction, as:
“measures and mechanisms that can reasonably be expected to protect critical
habitat from alterations that would reasonably be expected to reduce the critical
habitat’s capacity to provide for the recovery and survival of a species at risk.”
In order to determine whether critical habitat is effectively protected, A Decision
Framework for Determining Critical Habitat and Residence Protection Status is
used. The four basic steps outlined in the Decision Framework are:
1. Characterizing the critical habitat (biophysically, temporally, functionally,
chemically, etc.);
2. Determining what alterations have the realistic potential to diminish or
eliminate the potential of the critical habitat (based upon the abovedescribed elements) to allow the species at risk to recover;
3. Determining what control mechanisms are in place relative to each of
these potential alterations; and
4. Determining if these control mechanisms (including appropriate
stewardship agreements), individually or collectively, result in the critical
habitat being “effectively protected.”
ii
If it is determined that critical habitat is not effectively protected, there are two
options to close any gaps that may exist. The first option involves either
amending or developing legislation/mechanisms, by engaging and working with
the province/other government department to resolve the issue. The second
option is applied in those situations where the “gap” is not a widely distributed
systemic problem, and where the preferred approach is to secure a legally
binding agreement with the landowner(s). The agreements aim to protect critical
habitat.
On non-federal lands, SARA requires the Minister of the Environment to
recommend to the Governor in Council that an order be made to protect critical
habitat that a province has not effectively protected (or that is not protected by
other means). In instances where a province has legislation in place that can
protect critical habitat designated under SARA, or other protection mechanisms
in place, there is no requirement for the use of SARA section 11 or other federal
action such as the prohibition order.
Critical Habitat Safety Net Direction and Procedures
Through the 1996 Accord for the Protection of Species at Risk, the federal
government, the provinces and the territories, made a commitment to protect
species and habitat within their own jurisdictions. Many provinces and territories
have introduced or amended legislation to meet commitments in the Accord
(effective implementation is a key consideration in this area).
The intent of the Safety Net is to provide the ultimate federal regulatory
protection to species at risk (with the exception of Species of Special Concern)
and their residences (if the species at risk is a non-aquatic species or not a
migratory bird). Otherwise, the protection is automatic through SARA.
The Minister of the Environment must recommend that the order be made if the
Minister is of the opinion that the laws of the province do not effectively protect
the species or the residences of its individuals.
Permit Direction and Procedures
The agreements and permits section of SARA indicates that a competent
minister may enter into an agreement with a person or issue a permit to a person
authorizing an otherwise prohibited activity affecting a species listed under
SARA. This activity might also affect critical habitat, or the species’ residence.
Further guidance is provided in the appended document entitled Permits and
Agreements under the Species at Risk Act.
Critical Habitat Restoration and Creation Direction
Direction to restore and create critical habitat are intended to provide guidance to
recovery planners and Departmental staff to determine if such activities are
appropriate.
iii
Compensation
Section 64 states “The Minister may, in accordance with regulations, provide fair
and reasonable compensation to any person for losses suffered as a result of an
extraordinary impact of the application of….” Compensation direction is based
on key interpretations from Section 64 of SARA. In the interim, applications can
be made to the Minister of the Environment, and will be reviewed on a case-bycase basis.
While the Critical Habitat guidance document is a comprehensive guide for
recovery planners and Departmental staff working on critical habitat, it is
acknowledged that there may be future changes necessary. The changes will be
in response to the challenges and experience from implementing the Species at
Risk Program, or as a preemptive measure to avoid future perceived identified
program challenges.
iv
TABLE OF CONTENTS
ABOUT THIS PAPER
VII
INTRODUCTION:
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Intent and National Program Direction
-11.0
CRITICAL HABITAT IDENTIFICATION DIRECTION
-2-
1.1
INTENT:
- 3-
1.2
SARA Context
-3-
1.3
Accountability Context:
-2-
1.4
Critical Habitat Identification Direction and Procedures
-3-
1.5
Section 60: Habitat of Provincially/Territorially Listed Species
2.0
CRITICAL HABITAT SURVEYING AND MAPP ING DIRECTION
2.1
Intent
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2.2
SARA Context
- 10 -
2.3
Accountability Context
- 10 -
-9- 10 -
2.4
Critical Habitat Surveying
2.4.1
General Approach
2.4.2
Re-visitation Rate of Critical Habitat Surveys
- 11 - 11 - 11 -
2.5
Critical Habitat Mapping
2.5.1
General Direction
2.5.2
Use of Provincial/Other Mapping Sources
2.5.3
Data Ownership, Distribution, Access, and Charges
- 11 - 11 - 12 - 12 -
3.0
CRITICAL HABITAT PROTECTION DIRECTION AND PROCEDURES
- 13 -
3.1
Intent
- 13 -
3.2
SARA Context
- 13 -
3.3
Accountability Context
- 14 -
3.4
Direction for Determining “Effective Protection”
3.4.1
Definitions and Assumption of Compliance
v
- 14 - 14 -
3.4.2
3.4.3
3.4.4
3.5
3.5.1
3.5.2
3.5.3
Scale of Determining “Effectively Protected”
Method of Determining “Effective Protection”
A Finding of “Not Effectively Protected”
Critical Habitat Agreements and Stewardship Direction
Intent
The SARA Context
Section 11 Implementation Direction
- 16 - 16 - 17 - 17 - 17 - 17 - 19 -
3.6
Ministerial Orders for Critical Habitat Protection on Federal Lands
3.6.1
Intent
3.6.2
SARA Context
3.6.3
Accountability Context
3.6.4
Critical Habitat Protection - Federal Lands and First Nation Reserve Lands
- 23 - 23 - 23 - 23 - 24 -
3.7
Critical Habitat Safety Net Direction and Procedures
3.7.1 Intent
3.7.2
SARA Context
3.7.3
Accountability Context
3.7.4
Safety Net Direction and Process
- 26 - 26 - 26 - 27 - 27 -
3.8
Critical Habitat/Residence Permitting Direction and Procedures
3.8.1 Intent
3.8.2
SARA Context
3.8.3
Agreements / Permits - When to Use Which?
3.8.4
Permitting Direction
- 29 - 29 - 29 - 30 - 31 -
3.9
SARA Compliance Promotion Strategy
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4.0
CRITICAL HABITAT RESTORATION AND CREATION
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5.0
COMPENSATION
- 34 -
5.1
Intent
- 34 -
5.2
SARA Context
- 34 -
5.3
Accountability Context
- 34 -
5.4
Compensation
- 34 -
6.0
APPENDED GUIDANCE DOCUMENTS
- 36 -
TECHNICAL GUIDELINES, DRAFTING GUIDELINES, AND DECISION-TOOLS
- 36 -
I)
Technical Guidelines For Critical Habitat Surveying
- 35-
II)
Technical Guidance For Critical Habitat and Residence Mapping
-37-
vi
III)
A Decision Framework For Determining Critical Habitat and Residence Protection
Status
-39-
IV)
Guidance For Establishing Population and Distribution Objectives and Identifying Critical
Habitat Under SARA
-43-
V)
Drafting Guidelines For MOUs With Federal Departments/Agencies For Critical
Habitat
-44-
Drafting Guidelines For Section 58 Orders
-45-
VI)
vii
ABOUT THIS PAPER
This document is intended to guide the recovery planning and implementation
process, designed more specifically for recovery planners and Departmental
staff. It sets out the relative responsibilities/accountabilities of those parties
involved in formal critical habitat identification in the Public Registry. It is also
intended to bring a level of nation-wide consistency and comparability by defining
a general process that all can follow.
There are several sections of the Species at Risk Act that are pertinent to the
processes set out in this paper. These sections are set out on the folded insert
that can be placed beside this paper for easy reference while reading.
NOTE: Throughout this document, the term “recovery planner” is used as a
generic reference to those who are undertaking the recovery planning and/or
action planning for a particular species at risk. Typically, this will be a team or
group of individuals; however, the team approach is not mandated in the Act and
there may be situations in which recovery planning/action planning is not
undertaken by a team or group.
viii
Introduction:
Intent and Direction
Intent
The intent of the Species at Risk Act (SARA) is stated in the preamble:
“to prevent Canadian indigenous species, subspecies and distinct
populations of wildlife from becoming extirpated or extinct, to provide for the
recovery of endangered or threatened species, to encourage the
management of other species to prevent them from becoming at risk.”
Direction
The identification and effective protection of critical habitat for listed species at
risk will, in many instances, play a fundamental role in their survival and
recovery.
As set out in the Act, a broad perspective is essential for effective program
implementation. Sections of the Preamble reinforce the need to maintain this
perspective:
“responsibility for the conservation of wildlife in Canada is shared among the
governments in this country and it is important for them to work cooperatively
to pursue the establishment of complementary legislation and programs for
the protection and recovery of species at risk in Canada”
“the conservation efforts of individual Canadians and communities should be
encouraged and supported”
“stewardship activities contributing to the conservation of wildlife species and
their habitat should be supported to prevent species from becoming at risk”.
Cooperation and Stewardship First
The critical habitat and residence components of SARA reinforce the intent and
policy direction in the Preamble as:
“Cooperation and Stewardship First”
SARA contains strong mechanisms and powers for the federal government to
regulate the protection of residence and critical habitat in Canada directly and
unilaterally. However, cooperative and voluntary measures must be viewed as
the first option to securing the protection required for these crucial elements to
1
species recovery.
2
1.0 Critical Habitat Identification Direction
1.1
Intent:
SARA section 2 defines critical habitat as:
“….the habitat that is necessary for the survival or recovery of a listed
wildlife species and that is identified as the species’ critical habitat in a
recovery strategy or in an action plan for the species.”
1.2
SARA Context
Sections 41 and 49 of SARA both refer to the need to identify critical habitat in
Recovery Strategies and Action Plans. Section 58 refers to critical habitat being
described in the Canada Gazette. For guidance purposes, “identify/describe” and
“identification/description” are treated synonymously.
1.3
Accountability Context:
It is important to remember that the ultimate responsibility, accountability,
and discretion for identifying critical habitat lies with the competent
minister, not the recovery planner, as in section 41 of SARA.
In this context, the recovery planner can be viewed as a main source of advice to
the Minister, who in turn determines the format and content of the formal critical
habitat identification. The Minister takes into account any other factors and
perspectives. Other sources of advice might be considered by the Minister, such
as the Department and experts (both solicited or unsolicited).
1.4
Critical Habitat Identification Direction and Procedures
The Identification Process
The identification of critical habitat is a key step in the SARA process. Once an
area is formally identified in the Public Registry and described in the Canada
Gazette, the requirements take effect for judging and ensuring protection.
In keeping with the intent of the Act, the process of identification of critical habitat
should be as transparent as possible.
Identification of critical habitat should be considered a process – a series that
refines at each step the habitat aspect of the recovery needs of a species at risk.
However, it is the final steps – the legal identification of critical habitat in the
Public Registry and any subsequent Governor in Council order for protection –
that form the legal basis for the application of the Act.
3
General Process
There is no absolute requirement to identify critical habitat in a Recovery
Strategy. The Act recognizes that it may not be possible to identify critical habitat
at this stage and specifically allows, in those situations, that a Schedule of
Studies be employed to identify critical habitat at the Action Plan stage (at which
point it is mandatory to identify critical habitat). The steps below can be applied at
either the Recovery Strategy stage or Action Planning stage.
The steps presume a population recovery target has already been established by
the recovery planner, who determines if the target is survival or recovery. SARA
allows for multi-species approaches to recovery, and this is also factored into the
general approach below. Guidance on these steps is provided in separate
documentation related to the Recovery Process.
Steps for Critical Habitat Identification: General (See Specifics for Details)
Step Number
Activity
Person Responsible
1.
Description of the
Recovery planner
Biophysical Attributes
(including type and area)
of the habitat required by
the species at risk
2.
Location, to the greatest
Recovery planner
extent possible, of all
habitat in the range
3.
Determination of the
Recovery planner and
habitat required to meet
Competent Minister
the population target of
the species at risk
(including the possibility
of a need to
create/restore habitat)
and implementation
factors
4.
Determination of critical
Competent Minister
habitat
5.
Formal identification of
Competent Minister
critical habitat in the
Recovery Strategy and
the Public Registry and
description in the Canada
Gazette
Notification of Landowners
4
 In all cases in which the landowner(s) are known, the landowner(s) of the
properties containing critical habitat must be notified (to the extent possible) of
the existence and extent of critical habitat on their lands by registered mail or
similar verifiable method. The notification will include a full description of the
landowner’s legal obligations and advice on the management of the critical
habitat, including opportunities for stewardship, where appropriate.
 When property changes hands, it is not the responsibility of the federal
government to ensure that any subsequent owners of the property are
informed of the existence of critical habitat; this must be identified in due
diligence on the part of the buyer of the property.
Specifics
SARA requires1 that species’ critical habitat be identified “to the extent possible.”
The specifics outlined in this section contain numerous decisions, each requiring
information or data. These decisions will be made either by the recovery planner
or by the competent minister.
If the required information and/or data are not available to make the required
determination, or if the habitat attributes of the species are poorly understood,
then an accurate determination may not be possible. In these instances, the Act
prescribes2 that a Schedule of Studies be created that outlines the actions
needed for critical habitat identification.
When a determination is made that the “available information is inadequate” to
identify the critical habitat,3 the determining factors should be confined to
scientific or technical impediments to identification. Other considerations, such as
Departmental capacity and socio-economic considerations, are taken into
account at other, more appropriate points in the overall recovery/critical habitat
identification process.
These steps are not a “one time” process. Knowledge of critical habitat for
specific species will likely grow over time, targets may be amended, and habitats
are by nature dynamic and may change through time. The process of identifying
critical habitat will therefore be iterative in many cases.
1
Section 41 (1) (c)
Section 41 (1) (c.1)
3 As per Section 41 (1) (c)
2
5
Specific Steps for Critical Habitat Identification
Step
Description and Person
Number Responsible
Description of the
1
Biophysical Attributes
(including type and area) of the
habitat required by the species
at risk. (Recovery planner)
2
Location, to the greatest
extent practically possible, of
all species at risk habitat in
the range. This includes
unoccupied range for extirpated
species and threatened and
endangered species, where
appropriate. This entire step
requires an appropriate level of
peer review. (Recovery planner)
Specifics
Written description that includes, at a minimum:
 any and all geological, vegetative,
topographical, climatological, physical,
chemical, or biological attributes, or suite of
attributes, that constitute habitat for the
species at risk
 any temporal considerations to the above
attributes
 any requirements related to distribution and
density of separate habitat polygons in a
landscape (fragmentation/proximity factors)
 any area or type of habitat that is required to
maintain existing known biological connections
between physically separated polygons of
habitat that qualify as habitat themselves and
should be included in the above habitat
description (connectivity factors)
 a description of any area (such as a buffer
zone) that is either typically required or
required in specific situations to protect the
habitat from the influence of typical, expected
non-compatible activities/land use in the area
and/or biological threats through species
interactions. Such areas should be considered
part of the habitat itself, and should be
described as such, rather than as some
separate concept.
 Based upon the description determined in
Step 1, the Recovery planner will determine
the locations, with the greatest certainty
feasible, of all areas in the range of the
species at risk (or population) that meet the
description outlined in Step 1.
 The results of this analysis should be referred
to as species at risk habitat in the draft
Recovery Strategy.
 Where appropriate, the Recovery planner
should describe and/or delineate habitat that
could reasonably be expected to become
species at risk habitat, either through ongoing
natural processes (i.e., no active
management) or through active
restoration/enhancement efforts. This should
be referred to as potential or restorable
species at risk habitat in Recovery Plan
materials and will serve to inform recovery
operations for habitat restoration,
enhancement, etc., as required. Potential or
-6-
restorable species at risk habitat is different
from “unoccupied habitat,” which is an area
that does contain the attributes of habitat for a
species at risk but is not currently being used
by the species at risk.
 This step is an ecologically based exercise
(including Aboriginal Traditional Knowledge)
and does not take into account factors such as
land ownership, stakeholder desires, or
previewing of implementation issues. Those
factors are included in the next steps of the
Identification process.
3
 Determination of the
habitat required to meet
the population target of the
species at risk. This
includes rationalization of the
species at risk habitat and
potential or restorable
species at risk habitat
located in Step 2 with the
population target of the
species at risk (including
creating/restoring habitat)
and implementation factors.
The goal of this step is to
determine what proportion of
the species at risk habitat will
be formally identified as
critical habitat in the Public
Registry in Step 4.
 (The recovery planner is
responsible for the
rationalization of the species
at risk habitat against the
population target for the
species at risk. The Minister
is responsible for
rationalization of the species
at risk habitat against
program implementation
factors, with advice derived
from the Recovery Planning
process and other sources
as and where deemed
appropriate.
 Using a scientifically valid and defensible
method, the Recovery planner determines
what proportion of the species at risk habitat
must be protected to achieve the recovery
target of the species at risk. This will include
the percentage or some
quantitative/qualitative measure and
distribution characteristics of the species at
risk habitat. Note that this may take in all of
the species at risk habitat (i.e., 100%) located
in Step 2, or some lesser amount, including a
zero amount (in the rare case where survival
or recovery of a species at risk is not limited
by habitat issues).
 The Recovery planner will undertake an
analysis of the threats to this habitat and
recommend general or specific measures
which can be employed to afford protection to
that habitat from these anticipated threats.
 The Recovery planner may undertake
additional analysis (and, in specific cases,
may be encouraged and equipped to do so),
taking into account stakeholder views,
considerations of practical implementation,
peer review, etc., and include these as advice
for the Minister in the next step (below), with a
clear understanding that the Minister will
determine how and where to incorporate that
advice. However, for clarity on the part of the
competent minister, the Recovery planner
should not integrate these considerations into
the biological/ecological considerations and
advice to the competent minister.
-7-
Step
Description and Person
Number Responsible
Determination of critical
4
habitat (Competent Minister)
5
Formal identification of
critical habitat in the
Recovery Strategy and the
Public Registry and
description in the Canada
Gazette The goal of the formal
identification is the
maintenance of the function of
the habitat elements, rather
than simply the static
maintenance of particular
physical attributes of the
landscape needed by the
individual species at risk.
(Competent Minister)
Specifics
 The Minister will consider the proportion of the
species at risk habitat identified as critical
habitat and the analysis of the threats to this
habitat and recommended measures from
Step 3, and undertake any required additional
analyses based upon program implementation
factors and socio-economic or other
considerations, including stakeholder input,
solicited or unsolicited. As part of this process
the Recovery planner may provide analysis of
stakeholder views, considerations of practical
implementation, peer review, etc.
 The identification (Public Registry) and
description (Canada Gazette) will, at a
minimum, consist of a written description of the
biophysical and/or functional attributes of the
critical habitat from Step 1 and a
description/coordinates of general
locations/ranges upon the landscape within
which these types of habitat can reasonably be
expected to occur (from Step 2). Note that for
the purposes of the Canada Gazette, a legal
geographic delimitation is required (i.e., at
least three latitude and longitude coordinates)
to define the “range” in which the narrative
description applies. Mapping of habitat will be
employed to identify critical habitat where it is
possible to deliver the required accuracy and
precision.
 It is also possible, in the Canada Gazette, to
refer to a map that exists outside of the
Gazette. However, if that external map is
changed in any way, the legal description of
the habitat in the Gazette description may also
need to be changed. In such cases a formal
“re-Gazetting” process (consultations, notices,
etc) would be required.
 Geo-spatially referenced map data are
preferable when available and appropriate.
However, detailed mapping is not explicitly
required in the formal identification of critical
habitat. It can form part of the Public
Registry/Canada Gazette materials only when
there is an extremely high confidence level in
the accuracy and precision of maps. (See
appended Critical Habitat Mapping section for
direction related to habitat mapping.)
-8-
1.5 Section 60: Habitat of Provincially/Territorially Listed
Species
Section 60 indicates that the habitat of a species at risk listed by a
province/territory is protected on federal lands in that province or territory. The
particular portions of the protected habitat are specified by the Governor in
Council.
The wording of section 60 parallels that of the definition of critical habitat:
“…habitat of that species that the provincial or territorial minister has identified as
essential to the survival or recovery of the species….”4 The identification
supplied by the provincial/territorial minister must therefore meet the standard
established (above) for critical habitat of a species listed under SARA.
4
Emphasis added.
-9-
2.0
2.1
Critical Habitat Surveying and Mapping Direction
Intent
During the course of recovery planning, action planning, and recovery
operations, it is often necessary to undertake survey work (using a variety of
techniques) to determine the existence of species at risk habitat, its spatial
extent, and its characteristics. Mapping products related to the findings of these
surveys (whether or not these maps form part of the formal critical habitat
identification, as discussed in the previous section) will also be required.
Although seemingly straightforward in concept, both surveying (especially ground
surveys) and the production of map products have been widely debated. Aspects
of this debate are worth keeping in mind, such as landowner rights, surveying
techniques and their accuracy, and the accuracy/precision/legal status of maps
that result from surveys.
The following is intended to guide the process of surveying and mapping critical
habitat if and when it is determined that such surveying and mapping is
required for Recovery Planning and/or Recovery Implementation.
2.2
SARA Context
There is no explicit reference to surveys or “mapping” in the Act. There will be
instances where surveys and maps will ultimately be part of the formal
identification of critical habitat in the Recovery Plan, Public Registry, and
Gazette. However, surveys and maps may not always be feasible, required, or
even desirable. Surveys and map products will exist strictly as operational
program tools and will not form part of the formal identification of critical habitat in
the Public Registry.
2.3
Accountability Context
As no explicit requirement exists in the Act for critical habitat surveying and
mapping, no party is legally accountable for its production. That said, it is realistic
to assume that surveying and mapping will be a common operational tool in the
identification and protection of critical habitat. Direction should be given by the
competent minister(s) on surveying and mapping procedures to those involved in
Recovery planning and operations . This will ensure national consistency and
comparability for critical habitat survey and map products that are used in the
Recovery process and/or presented as public information.
- 10 -
2.4
Critical Habitat Surveying
2.4.1 General Approach
Critical habitat surveying will, in all cases, be carried out using the best available,
defensible science by professionally trained individuals. The process will be
informed by respect for landowner rights, by consultation with stakeholders, and
by an acknowledgement of traditional/informal knowledge.
2.4.2 Re-visitation Rate of Critical Habitat Surveys
Habitat is, by its very nature, dynamic. In a healthy ecosystem subjected to
natural disturbance patterns, habitat (especially vegetation-based habitat) will
generally evolve slowly over time.
Habitat will change even more rapidly in situations featuring human land use
and/or intentional habitat manipulation. However, it is not possible under the
Species at Risk Act to designate an area as critical habitat that does not currently
contain the elements of critical habitat, even though that habitat might evolve into
those characteristics. It is therefore necessary to periodically revisit critical
habitat.
As a matter of general guidance, critical habitat surveys should be reviewed at a
maximum of every 5 years. More frequent re-evaluations are needed if natural
changes can be reasonably expected over more compressed time frames, or if
the critical habitat is in a landscape undergoing major change/disturbance (for
example, active forest operations, mineral exploration, urbanization, agriculture,
or effects of climate change).
For further guidance on Critical Habitat Surveying, see Technical Guidelines for
Species At Risk Critical Habitat and Residence Surveys, appended to this
document.
2.5
Critical Habitat Mapping
2.5.1 General Direction
Mapping of critical habitat, and of more general species at risk habitat, must
conform to the standards laid out in the appended document, Technical
Guidelines for Species at Risk Critical Habitat and Residence Mapping.
All critical habitat mapping must be dated and include clear disclaimers regarding
the intended use of the mapping – for example, as a guide to habitat
management activities – and any issues of precision, accuracy, or time
sensitivity.
- 11 -
Instances may arise where there is a difference between mapping posted on the
SARA Public Registry solely for the purposes of public/stakeholder information,
discussion, etc., and that which forms the formal, legal description of critical
habitat in the Canada Gazette. It should be made clear that the Canada Gazette
description is the one to which the prohibitions of SARA apply. The materials
presented on the SARA Public Registry are not the basis for the prohibitions and
care must be taken in the Registry to make this as clear as possible.
2.5.2 Use of Provincial/Other Mapping Sources
The preferred option is to use mapping done to Environment Canada critical
habitat mapping standards as outlined in Technical Guidelines for Species at
Risk Critical Habitat and Residence Mapping. In cases where provincial/territorial
sources of mapping do not conform to Environment Canada standards,
Environment Canada may nevertheless enter into bilateral agreements with
provinces or territories for new mapping or upgrading of existing mapping.
2.5.3 Data Ownership, Distribution, Access, and Charges
General Guidance:
 All critical habitat mapping is to be accessible to the public upon request,
unless prohibited by agreement with external source data providers, or in
cases where the critical habitat is of such a sensitive nature that the general
publication of the critical habitat mapping would threaten the critical habitat or
the species at risk. 5
 Landowners must be informed as per the procedures outlined in the Critical
Habitat Identification Process (section 1.4).
Access and Costs:
 Subject to the above general direction and where practical, Environment
Canada will strive to make all mapping available on the Internet in a
downloadable format that allows it to be viewed but not amended or
manipulated.
 Electronic or hard copies of critical habitat mapping data will be available from
Environment Canada at cost (exception: one set of hard-copy critical habitat
mapping will be provided to each affected landowner at no charge).
5
See SARA Section 124.
- 12 -
3.0 Critical Habitat Protection Direction and procedures
3.1
Intent
The following guides those who must make a recommendation to the Minister on
whether critical habitat for a species at risk is “effectively protected.” The Minister
uses this advice in deciding on the following options: a) to recommend to the
Governor in Council that the Safety Net order be made; and/or b) to make an
Order prohibiting critical habitat destruction (depending upon the situation).
This direction and procedures are designed to ensure consistency and
comparability to the process of judging what is “effectively protected” for each
situation that will arise.
3.2
SARA Context
SARA section 2 defines critical habitat as:
“….the habitat that is necessary for the survival or recovery of a listed wildlife
species and that is identified as the species’ critical habitat in a recovery strategy
or in an action plan for the species.”
Section 58 requires the competent minister to determine whether critical habitat
is “legally protected.” Section 61 requires the Minister of the Environment to
determine whether critical habitat is “effectively protected “ in various situations,
and to make a recommendation to the Governor in Council to apply SARA
protective measures if a gap in protection exists.
The Act does not define key concepts such as “protection”, “legally protected,”
and “effectively protected,” and it does not set out what would constitute
“destruction of any part of” critical habitat.
Other important notes:
 There is provision 6 for the Minister to recommend the application of the
SARA protective measures at the request of a provincial or territorial
minister.
 The habitat of species at risk listed by a province or territory is protected
on federal lands in that province or territory7. This is discretionary and the
6
7
Section 61 (3)
Section 60.
- 13 -
particular portions of the protected habitat are specified by the Governor in
Council.
3.3
Accountability Context
The competent minister is ultimately responsible and accountable for ensuring
that critical habitat on federal lands, as well as that of migratory birds and aquatic
species, is “legally protected”. Similarly, the Minister of the Environment is
responsible for ensuring that the critical habitat on non-federal lands is
“effectively protected”.
The Act does not prescribe how this is to be accomplished. The competent
minister(s) has numerous vehicles and mechanisms available, and at all times
the overarching SARA policy approach of cooperation and stewardship is clear.
However, on specific timelines, the Minister must judge whether all of the
mechanisms being brought to bear on critical habitat constitute, in sum, “legally
protected”/ “effectively protected.” If not, the Minister is obligated (depending
upon the situation as it relates to federal species, federal lands or otherwise)
either to make an order prohibiting destruction and/or to invoke the federal Safety
Net powers of the Act.
Provincial or Territorial Requests
In situations where a provincial or territorial minister requests that the protective
mechanisms of SARA be used,8 the Act states that the Minister may make such
a recommendation. The Minister will evaluate the validity and need for the use of
SARA (as opposed to other existing mechanisms or stewardship approaches). In
practice, this evaluation will be made in the same way as “effective protection” is
determined under any other circumstance.
In these cases, it is essential that the analysis of “effective protection” be
approached with the highest possible degree of national consistency and
transparency. This will help ensure that the rationale used in one case in one part
of Canada is demonstrably comparable to the rationale used in another case in
another part of Canada. Actual decisions can and will vary with the circumstance,
but the logic and the process used to reach that decision will be consistent.
3.4
Direction for Determining “Effective Protection”
3.4.1 Definitions and Assumption of Compliance
Overall Intent
8
Section 61 (3).
- 14 -
All habitat identified as critical to a species at risk is essential to the survival and
recovery of that species at risk. The full spectrum of protection and management
measures is employed to ensure that there is no negative impact on critical
habitat.
NOTE: It is not desirable from a national program guidance perspective to have different
standards for federal lands that are “legally protected,”9 and non-federal lands that are “effectively
protected.” 10 The test of “legally protected” for federal lands will be treated in exactly the same
manner as that for “effectively protected” on non-federal lands (see below).
Definitions
“Effectively Protected”
“Effective protection” is defined within the purposes of the Act:
i) to prevent wildlife species from being extirpated or becoming extinct,
ii) to provide for the recovery of wildlife species that are extirpated, endangered or
threatened as a result of human activity; and
ii) to manage species of special concern to prevent them from becoming endangered or
threatened.
Emphasizing the concept of reasonableness – that “alterations” being considered
are not remote but are instead ones that can be reasonably expected under the
prevailing and foreseen conditions or use for that type of site, and in the SARA
context, the definition of “effective protection” is :
“measures and mechanisms that can reasonably be expected to protect
critical habitat from alterations that would reasonably be expected to
reduce the critical habitat’s capacity to provide for the recovery and
survival of a species at risk.”
“destroy any part of”
For the purposes of issuing permits, and compliance, it is necessary to establish
a consistent understanding of what constitutes the “destroying of any part of “
critical habitat. Similar to above, this concept is based on the reason critical
habitat is protected within SARA (in essence, the survival or recovery of the
species at risk). “Destroy any part of” is defined as:
Any alteration to the topography, geology, soil conditions, vegetation,
chemical composition of air/water, surface or groundwater hydrology,
micro-climate, or sound environment of such a magnitude, intensity, or
duration which significantly reduces the capacity of the critical habitat to
contribute to the survival or recovery of the species at risk, based upon
9
Section 58.
Section 61.
10
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the biology of that species and as expressed in the approved Recovery
Strategy/Action Plan.
3.4.2 Scale of Determining “Effectively Protected”
For critical habitat, the status of “effective protection” will be analyzed and
determined at two levels: at the level of specific properties (i.e., land ownership
level), and at a polygonal level, where applicable. Where a critical habitat
polygon involves two or more individual properties, the overall status of
“protected” or “unprotected” will be assigned to the polygon based upon the size,
distribution, and characteristics of the “unprotected” parcels within the polygon.
In many instances the data/level of knowledge will not be detailed enough to
facilitate a thorough analysis at the level of specific properties. In those
instances, at a minimum, analysis will be performed at the polygon level.
3.4.3 Method of Determining “Effective Protection”
In order to ensure consistency and transparency in the process of determining
whether critical habitat is “effectively protected” Environment Canada will employ
a rigorous decision framework. This framework is designed to assist the biologist
and manager in making a final recommendation to the Minister on what is
effectively protected. Experience in applying the process will enhance that
consistency, and training will promote common interpretations and perspectives.
Although the legal accountability for determining effective protection lies with the
competent minister(s), the process of arriving at a conclusion will involve
considerable input from, and consultation with, provincial/territorial/First Nations
governments, recovery planners, and stakeholders.
Here are the four basic steps in the decision framework. Details are set out in A
Decision Framework for Determining Critical Habitat and Residence Protection
Status, appended to this document.
1. Characterizing the critical habitat (biophysically, temporally, functionally,
chemically, etc.);
2. Determining what alterations have the realistic potential to diminish or
eliminate the potential of the critical habitat (based upon the abovedescribed elements) to allow the species at risk to recover;
3. Determining what control mechanisms are in place relative to each of
these potential alterations; and
4. Determining if these control mechanisms (including appropriate
stewardship agreements), individually or collectively, result in the critical
habitat being “effectively protected”.
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3.4.4 A Finding of “Not Effectively Protected”
If the “gap” is systemic in nature (rather than incidental on a few specific
properties), the first option to put legislation/mechanisms in place, or amend
current ones, to close the protection gap. This involves engaging and working
with the province/other government department (OGD). 11
Failing this, and/or in those situations where the “gap” is not a widely distributed
systemic problem, the preferred approach is to secure a legally binding
agreement with the landowner(s).12 An agreement obligates the landowner(s) to,
at a minimum, refrain from any activities that are likely to lead to the destruction
of critical habitat on the property.
3.5
Critical Habitat Agreements and Stewardship Direction
3.5.1 Intent
This section contains the implementation steps proposed for the protection of
residences/critical habitat on non-federal lands and on First Nation reserves
under SARA, in instances where SARA stewardship agreements are used as the
legal mechanism for satisfying the Act’s requirement for effective protection. This
is in interim form and will be amended following clarification on outstanding
program and legal issues identified in the text.
3.5.2 The SARA Context
General
Section 11 agreements may be entered into by a competent minister13 with any
government in Canada, organization or person, after consultation with every
other competent minister and with the Canadian Endangered Species
Conservation Council (CESCC) or any of its members (as appropriate). The
agreement must provide for conservation measures and it must be consistent
with provisions14 of the Act. It may include protecting the species’ habitat or its
critical habitat.15
Critical Habitat Protection on non-Federal Lands
SARA16 requires the Minister of the Environment to recommend to the Governor
in Council that an order be made to protect critical habitat that a province has not
effectively protected (or that is not protected by other means).17
11
See Safety Net and Section 58 Orders.
See Agreements and Stewardship Direction, Section 58 Orders and associated appendices.
13 See Section 11 (1).
14 See Section 61 (4).
15 See Section 11 (2)(d)
16 See Section 61 (4)
17 including section 11 stewardship agreements (section 61(4)(a), or acquisition of the property
under SARA section 62)
12
- 17 -
The Minister of the Environment is required to report regularly on the steps being
taken to secure protection of the critical habitat and ultimately on the measures
used to protect this critical habitat, but there is no time limit.
Provincial protection will be negotiated between the provincial and federal
governments, likely within the framework of anticipated intergovernmental
bilateral agreements. The use of SARA section 11, section 62 or other federal
action such as the prohibition order18 would not be required in instances where a
province has legislation in place that can protect critical habitat designated as
such under SARA or other protection mechanisms in place.
The responsibility for the majority of tasks associated with the protection of
critical habitat on non-federal lands rests with the Minister of the Environment,
since the Minister’s responsibilities include:
 migratory birds under Migratory Birds Convention Act and the Species at
Risk Act
 all species at risk on lands managed by Environment Canada
 instances where the responsible provincial agency has failed to act for the
recovery of species, the protection and recovery of species and critical
habitat on non-federal lands (except species covered by the Fisheries
Act).
Critical Habitat on Federal Lands (excluding First Nation Reserves)
While there is nothing in SARA section 11 that precludes the signing of a formal
section 11 agreement with another federal government agency, as a matter of
principle such an agreement should not be necessary.
SARA is a federal Act and is applicable to the operations of all federal
Departments. It follows that the legal security provided by a section 11
agreement should not be necessary to ensure the protection of individuals,
residences, or critical habitat on federal lands. While the relevant SARA
implementing Department is encouraged to work cooperatively with other federal
Departments on the lands of those Departments, (see the section in this guide
pertaining to protection of critical habitat on federal lands), this can be achieved
through Memoranda of Understanding, Management Plans, and so on.
Critical Habitat on First Nation Reserves (Federal lands)
As covered in previous sections, First Nation reserves are considered federal
lands under the Species at Risk Act, and in instances where the identified critical
habitat is not effectively protected, the competent minister is required 19 to order
the prohibitions on that particular habitat. Protection of critical habitat on federal
lands is required within 180 days.
18
19
See Section 61 (4)
Under section 58 (5)
- 18 -
Since First Nations are to be treated as a level of government, the use of section
11 agreements in this context is entirely appropriate. In fact, in keeping with the
overall policy approach to species at risk recovery under SARA, stewardshiptype agreements are the preferred approach for securing effective protection on
First Nation Reserves (federal lands).
3.5.3 Section 11 Implementation Direction
3.5.3.1 Section 11 Agreements for Critical Habitat on non-Federal Lands
For critical habitat on non-federal lands, protection action is encouraged over
imposing a federal order (safety net) 20.
The Act specifies the use of section 11 agreements as one of the possible
protection mechanisms. Use of section 11 agreements by the federal
government to protect habitat will be determined on a case-by-case basis.
Section 11 agreements are of strategic benefit to the competent minister for the
recovery of species at risk since they can contain management provisions for site
improvement, while a prohibition order imposes non-use only. The absence of
ongoing management can lead to the decline of both habitat and species.
The implementation requirements and recommended contents for section 11
agreements are outlined in the following steps. Note that this is not intended to
imply that all agreements in place prior to SARA coming into force are not
compliant or ineligible as effective protection measures. On the contrary, preexisting arrangements will form the backbone of effective protection. However,
pre-existing agreements should be examined to ensure that they contain the
appropriate wording/elements to tie them to “effectiveness” under the Act.
Steps for Section 11 Agreements
(Please also refer to Implementation Guidelines for SARA section 11 Stewardship Agreements.)
1. Secure Ministerial21 Direction :
Where non-federal lands have been designated as critical habitat under SARA,
selection of a preferred protection mechanism will be determined on a case-bycase basis through consultation with provincial and federal agencies.
Options could entail provincial action, section 11(1) agreement, or acquisition
under section 62. Ministerial direction will be required on the preferred
20
See Section 61 (4)
Note that “Ministerial” direction as used in this section could denote direction from senior
management, as delegated authority of the competent Minister, or the competent Minister
his/herself.
21
- 19 -
protection option. Where section 11 agreement(s) are recommended, ministerial
direction will also be required on the requirement for and conduct of
consultations. 22 (sections 11(1) and 11(2)).
2. Conduct Consultations:
Section 11(1) allows for consultations on stewardship agreements, where the
competent minister deems such consultations appropriate. However, in the
interests of national consistency, these consultations should be conducted for all
critical habitat on non-federal lands. The consultations should consist of direct
discussions with the agency, corporation or individual owners of the land or of the
resource development rights to that land and should be limited to discussion
on a section 11 agreement.
3. Obtain Ministerial Decision:
The documented outcome of the consultations and views conducted in Step 2
will assist in informing the decision of the Minister. Following consultations
on protection of the critical habitat through a section 11agreement, a
ministerial decision should be obtained to negotiate a section 11 agreement,
where it is likely that an agreement is feasible.
4. Negotiate section 11 Agreement:
Once the competent minister has determined that a section 11agreement is
the appropriate protection mechanism for critical habitat on non-federal lands,
the appropriate government (provincial or municipal), organization or individual
is identified. Section 11 allows for agreements with any other government in
Canada, organization or individual. A section 11 agreement for 61(4) critical
habitat protection should be negotiated directly between the competent
minister and the owner of the non-federal critical habitat lands (province,
corporation or individual), so as to ensure effective protection of the habitat
under SARA.
Note: Use of Section 11 Agreements by Non-Federal Entities
Alternative arrangements include an administrative arrangement to
conclude section 11-type agreements with other governments through
SARA section 10 for specified critical habitat on non-federal lands.
Section 10 allows for agreements between a competent minister and any
other government in Canada, organization or wildlife management board
for the administration of any portions of the Species at Risk Act, following
any consultations that may be appropriate.
This option is not recommended in the initial years of SARA
implementation. It should only be pursued once direct experience has
been gained in the use of section 11 agreements and their effectiveness at
affording protection to critical habitat.
22
Sections 11 (1) and 11 (2)
- 20 -
5. Determine Agreement Purpose and Contents:
SARA specifies that section 11 agreements are to benefit species at risk or
enhance their survival in the wild, and that they must provide for conservation
measures consistent with the purposes of the Act such as monitoring,
awareness, recovery, planning, recovery actions, protection of critical habitat
and research. 23 Within the scope of the Act, the content of section 11
agreements is extremely flexible. To meet the protection requirements of critical
habitat on non-federal lands24 , section 11 agreements will focus on those
actions that are deemed sufficient to have “effectively protected” the critical
habitat. The result is a legally binding agreement that constrains or
prevents the landowner or owner of resource development rights from
conducting land/resource uses that threaten the habitat, including outright
non-use, and requires the landowner or rights owner to facilitate ongoing site
management consistent with recovery action plan requirements for the
affected species.
Specify that the agreement is entered into under SARA section 11 for purposes
of section 61(4) and that it is binding on the owner of the property:
 Describe the critical habitat and location (see the critical habitat
identification process on page 10)
 Protection actions: non-use provisions, habitat management, and
altered land uses that ensure effective protection, including continuing acceptable
uses such as forest cutting or stocking rates.
 Financial information, including grants and contribution (G&C)
payments for recovery action, and contributions of resources and in-kind
contributions on behalf of the owner (see Habitat Stewardship Program Grants and
Contribution Guide available at 24).




Monitoring of site and measures
Access to the property
Signage and controlled access
Required permits (SARA, Migratory Birds Convention Act, Fisheries






Effective date and duration of the agreement
Mechanisms for agreement extension and re-negotiation
Notice provisions respecting changes in tenure and ownership
Non-compliance and penalties, including section 61 (4) order
Signature of landowner and federal officers
Other
Act, etc)
23
24
Sections 11 (2), Section 11 (2)(a), (b), (c), (d), (e) illustrate these purposes.
Section 61 (4)
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Where funding and federal contributions are involved, the Habitat
Stewardship Program (HSP) grants and contribution (G&C) agreements
can be used as a section 11 agreement. However, these agreements
must be modified as noted above with legal advice on wording. The
current terms and conditions for HSP G&C agreements allow these
agreements to be used for this purpose. Where funding is not involved, a
separate template is required to address the section 11 items above. In
either case, the identical key subjects (above) will need to be addressed.
6. Document Negotiations of the Agreement.:
A section 11 agreement is an alternative to a Governor in Council order under
section 61(4). It will therefore be important to document all aspects of the
negotiations leading to the agreement and subsequently monitor and document
compliance with the agreement. In cases where negotiations break down or
the agreement is breached, this documentation will support a recommendation
to the competent minister to impose a protection order. Legal advice will be
needed on the standard of information and documentation required.
7. Secure Needed Permits:
Successful implementation of a section 11 agreement for the protection of
critical habitat will depend, in part, on concurrent SARA permits or other
permits/authorizations under federal jurisdiction that may be required,
particularly if site management is to take place. Any permits required should
therefore be secured and issued in concert with the signing of the section
11 agreement and included as a condition of signature.
8. Signing Authority:
Once HSP projects have been approved by the Assistant Deputy
Minister’s committee, Environment Canada regional managers are
responsible for the appropriate approval and signing of G&C agreements under
Government of Canada policy. This model will be adopted for section 11
agreements.
3.5.3.2 Section 11 Agreements for Critical Habitat on First Nation Reserves
Lands)
(Federal
First Nation reserves are considered federal lands for the purposes of SARA.
Identified critical habitat on federal lands must be effectively protected within 180
days; otherwise, SARA25 requires the competent minister to order the prohibition
of the destruction of that particular habitat.
Stewardship-type agreements are the preferred approach for achieving effective
protection of individuals, residences and critical habitat on First Nation Reserves.
However, given the complex mix of rights and obligations that pertain to First
25
Section 58 (5)
- 22 -
Nations and Aboriginal people, both in general and in specific cases (such as
bands with Treaty rights and actions before the courts), legal and policy advice
will be required on the use of SARA Section 11(1) agreements for this purpose
on a case by case basis.
3.6 Ministerial Orders for Critical Habitat Protection on Federal
Lands
3.6.1 Intent
SARA places numerous obligations not only on the two competent ministers and
their Departments, but also on other federal government Departments and
federal agencies/entities. Among these is the obligation to effectively protect
individuals, residences, and critical habitat of species at risk found on all federal
properties, not just in National Parks, Environment Canada protected areas, or
lands owned by Fisheries and Oceans Canada. In order to achieve this
protection, the Species at Risk Act, while always encouraging voluntary action
and existing legislation as the priority approach, provides a mechanism for the
competent minister to make an Order protecting the critical habitat.
First Nation Reserve Lands are considered “federal lands” for the purposes of
SARA.
3.6.2 SARA Context
Section 58 of SARA addresses protection of critical habitat on federal properties,
including First Nation Reserve Lands. Specifically, section 58(5) states that the
competent minister must, within 180 days of the identification of critical habitat in
the Public Registry, either explain how the critical habitat on federal lands is
protected, or, if it is not protected, make an order to apply the prohibitions of
SARA directly. 26
Section 59 gives the Governor in Council authority to establish regulations under
SARA on any portion of federal government lands (including First Nation Reserve
Lands) to protect critical habitat if it is deemed to be not effectively protected.
Section 60 establishes protection, through Governor in Council Order, of the
habitat of species at risk listed by a province/territory on federal lands in that
province or territory. The particular portions of the protected habitat are specified
by the Governor in Council.
3.6.3 Accountability Context
The competent minister holds the key legal accountability for the use (or nonuse) of these provisions of SARA. As stated above, section 58(5) explicitly states
26
Section 58 (1).
- 23 -
that the competent minister must make an order if there is an opinion that critical
habitat is not legally protected on federal property, including First Nation Reserve
Land. Determining the level of protection on individual properties is covered in
the previous section “Critical Habitat Protection Direction.”
3.6.4 Critical Habitat Protection - Federal Lands and First Nation
Reserve Lands
An underlying premise in recovery planning is that all individuals, residences, and
critical habitat are required for the survival and/or recovery of species (whichever
has been chosen as the target). Although the ultimate legal responsibility for
protection rests with the competent minister, in the first instance the Department
of the federal government, which owns or administers the land is responsible for
taking all reasonable measures to ensure that the habitat is protected.
The direction of the federal government is to implement a
governance/consultation framework to try to ensure that critical habitat is
effectively protected before issuing a section 58(5) order.
3.6.4.1
Federal Lands Other Than First Nation Reserve Lands
For federal lands other than First Nation Reserve Lands, the department of the
competent Minister will send official notification to the appropriate Deputy
Minister of the federal Department responsible for the land. This information will
say why the competent minister is of the opinion that the land-owning
Department is not effectively protecting the critical habitat.
This formal notification to the department or agency/entity indicates the
competent minister is considering the use of a section 58(5) order. It also
indicates the competent minister is willing to work with the land-owning
Department/agency/entity to put a practical plan in place to effectively protect
the critical habitat (see Memorandum of Understanding below). Because there is
a 180 day time limit in the Act, a period of no more than 90 days will be allocated
to this planning process.
If the federal land-owning Department/agency/entity agrees in principle to
establish the necessary protection measures in an agreed upon, reasonable time
frame, the competent minister will defer the use of the section 58(5) order.
Although there is no set grace period, the general guidance is that necessary
legislation and/or other tools should be in place within 90 days.
If the issue is still unresolved after this consultation/effort, the competent minister
will make a section 58(5) order protecting the critical habitat.
This governance framework for each case must be specified in more detail within
a Memorandum of Understanding (MOU)between the competent minister and the
- 24 -
federal land-owning Department/agency/entity. For guidance on these
agreements, see Drafting Guidelines for MOUs with Federal
Departments/Agencies for Critical Habitat and Residence Protection, appended
to this document.
For guidance on the preparation of a section 58(5) order, see Drafting Guidelines
for Section 58 Orders, appended to this document.
Section 60 Orders
A province or territory may list a species under its own legislation that is not listed
under SARA. This is the situation contemplated in section 60 of SARA, which
states that there is habitat protection for species at risk listed by a
province/territory on federal lands in that province or territory. The particular
portions of the protected habitat are specified by the Governor in Council.
The competent minister will recommend a Governor in Council order protecting
the habitat of provincially/territorially listed species if:
1. the provincial/territorial minister requests that this be done;
2. the province/territory has supplied habitat identification consistent with that
outlined in this manual for critical habitat; and
3. the competent minister is satisfied that all the appropriate consultations have
been carried out by the province/territory.
3.6.4.2 First Nation Reserve Lands
For First Nation Reserve Lands and any other lands that are set apart for the use
and benefit of a band under the Indian Act, and all waters on and airspace above
those reserves and lands, the Grand Chief of the Band and the competent
minister will notify the Deputy Minister of Indian and Northern Affairs Canada
(INAC).The notification includes all reasons as to why (and, if applicable, where),
the Minister has concluded that species at risk critical habitat is present on the
reserve or land.
In addition, this notification indicates that the competent minister is willing to
work with the Band Council, or the Band Council and INAC, together to put a
practical plan in place to effectively protect the critical habitat, with an emphasis
on existing mechanisms and stewardship for site protection. This plan includes
use of a formal agreement under section 11 of SARA (see section 4.3
Agreements and Stewardship Direction). A period of 180 days is allocated to this
planning process.
A more detailed governance framework should be specified within the
Memoranda of Understanding between the competent minister and Indian and
Northern Affairs Canada. For guidance on these agreements, see Drafting
- 25 -
Guidelines for MOUs with Federal Departments/Agencies for Critical Habitat,
appended to this document.
3.7
Critical Habitat Safety Net Direction and Procedures
3.7.1 Intent
Through the 1996 Accord for the Protection of Species at Risk, the federal
government, the provinces and the territories made a commitment to protect
species and habitat within their own jurisdictions. Since the Accord was
endorsed, more provinces and territories have introduced legislation, or amended
existing legislation, to meet commitments in the Accord. (Note that it is also
important that any laws are implemented effectively to protect species, critical
habitat, or the residences of its individuals).
The overall approach of SARA is to complement provincial and territorial
legislation relating to species at risk with federal legislation and regulation, as
and where required.
Therefore, the intent of the Safety Net is to provide the ultimate federal regulatory
protection to species at risk (with the exception of Species of Special Concern).
their residences and their critical habitat if the species at risk is a non-aquatic
species or not a migratory bird. Otherwise, the protection is automatic through
SARA in those cases when all other avenues of protection have been explored
and exhausted, and the Minister has the official opinion that individuals or their
critical habitat remains not effectively protected off federal lands.
(For critical habitat on federal lands, see the previous section, Ministerial Orders
for Critical Habitat Protection on Federal Lands.)
3.7.2 SARA Context
With respect to individuals and residences:
SARA specifies27 that the Governor in Council may, on the recommendation of
the Minister of the Environment, by order, provide that the general prohibitions28
of SARA apply in lands in a province that are not federal lands. This applies to
individuals of a listed wildlife species that is not an aquatic species or a species
of bird protected by the Migratory Birds Convention Act. Invoking the order is
what is commonly referred to as the “Safety Net.”
The Minister of the Environment must recommend29 that the order be made if of
the opinion that the laws of the province do not effectively protect the species or
27
Section 34 (2).
Sections 32 and 33.
29 Under Section 34 (3)
28
- 26 -
the residences of its individuals.
Important to Safety Net Considerations on Critical Habitat

The Minister of the Environment 30must make a recommendation to the
Governor in Council to invoke federal protection if of the opinion that
existing provincial laws or other available measures do not effectively
protect critical habitat off federal lands.

There is a provision 31 for a situation where a provincial or territorial
minister, or the Canadian Endangered Species Conservation Council,
requests that the Minister of the Environment make a recommendation to
the Governor in Council to use the SARA safety net powers; however, the
power is discretionary (reflected in the use of the words: “Minister
may….”).

The above does not apply to aquatic species (per Fisheries Act) or to
migratory birds covered under the Migratory Birds Convention Act. The
Species at Risk Act assumes that those two pieces of federal law already
afford protection to the residence and habitat of those species groups.
(Note that for all of the above, equivalent subsections relate to Territorial
situations).
3.7.3 Accountability Context
The competent minister/Governor in Council holds the key legal accountability for
the use (or non-use) of the Safety Net provisions of SARA. Section 34(3) is
explicitly states that the Minister of the Environment must recommend a Safety
Net order to the Governor in Council if he/she is “of the opinion” that individuals
or residences are not effectively protected, and section 61(4) states the same for
critical habitat off federal lands. Determining the level of protection on individual
properties is covered in the previous section “Critical Habitat Protection
Direction.”
3.7.4 Safety Net Direction and Process
All individuals, residences, and critical habitat are required for the survival and
recovery of species. If any part of these items remain effectively unprotected for
non-federal species on non-federal lands, then it is first the responsibility of the
appropriate provincial or territorial government to take all reasonable measures
to ensure that the habitat is protected.
30
31
Section 61(4)
Section 61 (3).
- 27 -
The direction of the federal government is to implement a
governance/consultation framework to try to ensure that critical habitat is
effectively protected, before issuing a section 34(2) or section 61(4) order:
32

The department will inform the appropriate Wildlife Director in the province
or territory of all circumstances pertaining to why (and, if applicable,
where) the competent minister is of the opinion that provincial or territorial
legislation is not effectively protecting the species, residences, or critical
habitat.

Environment Canada will formally notify the Province or Territory that the
federal government is considering the use of a Safety Net order and
indicate that the federal government is willing to work with the
province/territory to put a practical plan in place to effectively protect the
critical habitat. A period of no more than 90 days will be allocated to this
planning process.

If the province or territory agrees in principle to establish the necessary
protection measures in an mutually agreeable and reasonable time frame,
the federal government will defer the use of the Safety Net. Although there
is no set grace period, the general direction will be that necessary
legislation and/or other tools should be in place within one year.

This governance framework must be specified in more detail within
bilateral agreements between the federal government and each province
or territory.

If the issue is still unresolved after the consultation/effort, the Minister of
the Environment recommends to the Governor in Council that the safety
net be invoked.

There is no formal appeal mechanism, but a dispute resolution process
should be included as an element in bilateral agreements with each
province or territory.

For those situations where the provincial or territorial minister has
requested that the Minister of the Environment recommend to the
Governor in Council that the safety net aspects of SARA be applied.32 the
Minister assesses the validity and need for such a recommendation using
the same process/rationale as above.

As per SARA, a Safety Net order is for five years, renewable by the
Governor in Council. Safety Net orders may be repealed at any time, once
Section 61 (3)
- 28 -
it is determined by the competent minister that the critical habitat is
effectively protected.
For guidance on the preparation of a Safety Net recommendation and Order, see
Drafting Guidelines for Safety Net Recommendations and Orders, appended to
this document.
3.8 Critical Habitat/Residence Permitting Direction and
Procedures
3.8.1 Intent
The agreements and permits section (section 73) of SARA indicates that a
competent minister may enter into an agreement with a person, or issue a permit
to a person, authorizing an otherwise prohibited activity affecting a species listed
under SARA. This activity might also affect the species’ critical habitat or the
species’ residence. Subsequent sections of SARA (sections 74 to 78) provide
further clarification. In addition, general exceptions to the SARA prohibitions are
identified in sections 83 to 84).
These agreements or permits, in essence, provide an exception under SARA. In
the absence of such an agreement or permit, a person is subject to prosection
under the various prohibition sections of the Species at Risk Act if found to have
contravened prohibitions against harming a species listed under SARA, or its
critical habitat.
3.8.2 SARA Context
Section 73 of SARA indicates that a competent minister may enter into an
agreement with a person, or issue a permit to a person, authorizing that person
to engage in an otherwise prohibited activity affecting a species listed under
SARA as extirpated, endangered or threatened. This also applies to critical
habitat, or the residence of species’ individuals.
However, section 73(2) limits this discretion, stating that an agreement may be
entered into, or a permit issued, only if the competent minister is of the opinion
that the proposed activity has at least one of the following three purposes:
(a) The activity is scientific research relating to the conservation of the
species and is conducted by qualified persons; or
(b) The activity benefits the species or is required to enhance its chances of
survival in the wild; or
(c) affecting that species is incidental to the carrying out of the activity.
For the purposes of this guidance, “incidental” means that any potential effects
are not intentionally directed at the species, its residence, or its habitat.
- 29 -
Even if an application is in compliance with this above section, section 73(3)
establishes further criteria, stating that an agreement may be entered into, or a
permit issued, only if the competent minister is of the opinion that the proposed
activity adheres to all three of the following pre-conditions:
(a) all reasonable alternatives to the activity that would reduce the impact on
the species have been considered and the best solution has been
adopted, and
(b) all feasible measures will be taken to minimize the impact of the activity on
the species or its critical habitat or the residences of its individuals, and
(c) the activity will not jeopardize the survival or recovery of the species.
For the purposes of this direction, “jeopardize” means placing in scientific doubt
the ability of the species to attain the population recovery target (either survival or
recovery) in the timelines projected in the species’ Recovery Strategy/Action
Plan.
SARA also includes other requirements or conditions for permits:
i.
ii.
iii.
iv.
v.
consultations are required prior to the permit being issued with authorized
Wildlife Management Boards and relevant bands under the Indian Act
(sections 73(4) and (5));
the permit’s duration is a maximum of three years (five years for an
agreement) (section 73(9));
a permit may be issued or an agreement entered into by the competent
minister under another Act as long as SARA’s requirements are adhered
to (section 74);
an explanation of why any permit or agreement or similar document was
issued or made must be included in the Public Registry (section 73(3.1)).
(this requirement applies whether these permits or agreements are issued
under SARA (section 73) or another Act of Parliament (section 74); and
a competent minister may enter into an agreement with any government in
Canada, inter alia, for the administration of any provision of SARA (section
78).
3.8.3 Agreements / Permits - When to Use Which?
An agreement should be used in those situations in which critical habitat must be
managed (not just protected) over a broad spatial area and/or over an extended
period of time. It should also be used when ongoing consultation is needed in
order to adapt methods and approaches over time between a proponent/entity
and the SARA department. In cases when the habitat will need management to
achieve some portion of the species recovery strategy, the use of a permit would
be cumbersome and inefficient, and would require repeated amendments and
incur extensive transactional costs.
- 30 -
For more information on the use of Agreements, please refer to the previous
section in this Guide on Agreements and Stewardship.
3.8.4 Permitting Direction
3.8.4.1 Use of Existing Federal Permit Regimes
Section 74 allows for use of existing or other federal permit regimes in place of
SARA section 73 permits, providing they meet the same standard for protection.
Existing permit mechanisms under the direct administration of a competent
minister will be used to issue permits regarding species at risk where those
permits and processes are deemed at least equivalent to the protection that
would come from using SARA directly.
The two implementing Departments of SARA already have such mechanisms in
place to permit activities that could affect species at risk, even though those
mechanisms may not be specifically focused on listed species. The Fisheries
Act, the Migratory Birds Convention Act (and associated regulations), and the
Canada National Parks Act are three prominent examples.
Special Note on the Migratory Birds Convention Act
The Migratory Birds Convention Act can only enable permitting activities that affect
migratory birds and their residence(s), not their habitat and not other biota that the
Minister of the Environment is responsible for under the SARA. Therefore, if the
Migratory Birds Convention Act and regulations are used to authorize an activity, the
SARA permitting systems would have to be used to authorize the same activity with
regard to the habitat and other biota.
Federal government departments, other than the two responsible for SARA
implementation, may have permitting mechanisms or equivalent in the legislation
they administer. However, section 74 explicitly limits the use of federal
“surrogates” to those “issued or made by the competent minister.” Therefore,
there is no provision to use federal permit processes not under the direct
administration of one of the two competent ministers as “surrogates” for
permitting tied to SARA.
Section 77 does explicitly allow for the existence of permits issued by other
federal ministers in an area of critical habitat, providing that impacts have been
minimized and that minister has consulted with the relevant competent
SARA minister. In effect, other federal ministers may continue to permit
activities within their mandates but those permitted activities cannot destroy any
part of critical habitat.
3.8.4.2 Other Governments’ Permitting Mechanisms
- 31 -
Section 10 of SARA indicates that any government in Canada can administer any
provision of SARA, for which a competent minister has responsibility, if the
competent minister has entered into an agreement with that government.
Section 78 states that any agreement, permit, licence, order or similar document
authorized by a province or territory that has signed a “section 10 agreement”
has the same effect as those established under SARA section 73(1), provided
that other relevant subsections of section 73 are fulfilled.
The use of this mechanism to facilitate the use of existing provincial or territorial
permitting processes is encouraged, providing the pre-requisites are met. This
would most naturally be pursued through the broader bilateral agreement
process.
3.8.4.3 Reviewing and Issuing Section 73 Permits or Their Equivalent
The following principles govern the process under which authorizations will be
issued.
Overall SARA purpose and commitments
“to prevent wildlife species from being extirpated or becoming extinct, to
provide for the recovery of wildlife species that are extirpated, endangered
or threatened as a result of human activity and to manage species of
special concern to prevent them from becoming endangered or
threatened.” (section 6).
biodiversity: “In preparing a recovery strategy, action plan or
management plan, the competent minister must consider the commitment
of the Government of Canada to conserving biological diversity”
a precautionary principle: “and to the principle that, if there are threats
of serious or irreversible damage to the listed wildlife species, costeffective measures to prevent the reduction or loss of the species should
not be postponed for a lack of full scientific certainty.” (section 38).
It is important to note this SARA direction on the precautionary approach when
there is a “lack of full scientific certainty.”
Discretion
Section 73 enables (but does not oblige) the competent ministers/agencies to
authorize persons to perform activities that could or would affect a listed wildlife
species. In this way, section 73 provides the basis for exceptions to the species
- 32 -
at risk prohibitions, and confers discretionary responsibility on the competent
minister to decide on such exceptions.
The competent minister cannot refuse to consider a permit request, nor can the
minister, as a matter of direction, state that no activities will be permitted that
could possibly affect listed species. The minister must consider each permit
request that is submitted, and make a decision on the merits of each case.
Direction governing the issuing of permits must not fetter the exercise of the
minister’s discretion.
Adherence to SARA Permitting Purposes and Pre-Conditions
The issuing authority must ensure that any proposed activities potentially
affecting listed species, their residences or their critical habitat(s) have one or
more of the purposes and that they adhere to all of the pre-conditions stated in
SARA (see The SARA Context, above).
When a permit is requested for an activity in an area that contains individuals or
critical habitat of more than one species at risk, the conditions must be met for all
species at risk in that area. In other words, if the activity would have a negative
affect on even one species at risk inhabiting the area, then the permit cannot be
issued.
In undertaking a review, staff of the issuing agency must ensure that scientific
review and/or technical consultation meets the requirements for a transparent,
open, nationally consistent, credible and accountable process.
Consultations/Public Notice on Permits
Consultation does not require consensus, unanimity or resolution, but instead a
process that is fair and is perceived to fair, in which all relevant parties are
accorded sufficient time, resources and information to allow them to present their
views on the subject(s) at hand.
In the context of “Agreements and Permits” in SARA, the competent minister is
required to consult with Wildlife Management Boards 33 and certain “bands” 34
before entering into an Agreement or issuing a permit.
Upon reaching a decision to issue a SARA permit, the relevant Department
must post this decision and the rationale behind it on the SARA Public
Registry35 . As a matter of direction, this material will be filed within one
month of the decision.
33
Section 73 (4)
Section 73 (5)
35 Section 73 (3.1).
34
- 33 -
For more details on the process to be employed in permit review and issuance
for SARA, refer to the federal document entitled Guidance on Permits and
Agreements under the Species at Risk Act.
3.9
SARA Compliance Promotion Strategy
(under development)
4.0 Critical Habitat Restoration AND Creation Direction
(under development)
5.0 COMPENSATION DIRECTION
(under development)
5.1
Intent
The following is intended to guide response when dealing with potential financial
compensation for restrictions imposed pursuant to SARA.
5.2
SARA Context
Section 64 of SARA states:
“The Minister may, in accordance with the regulations, provide fair and
reasonable compensation to any person for losses suffered as a result of any
extraordinary impact of the application of” the critical habitat protection provisions
of the Act, sections 58, 60, 61 or emergency order.
Further, section 64(2) directs the Governor in Council to establish regulations on
how the compensation function is to be implemented.
5.3
Accountability Context
In accordance with SARA, “the Minister” means the Minister of the Environment.
Section 64 is enabling, not prescriptive. This means the Minister may provide
compensation but is not obligated under SARA to do so.
5.4
Compensation
All requests for compensation under SARA are to be referred to the federal
cabinet via the Minister of the Environment. Such requests will not be processed
internally within the implementing Departments. No recommendation will go
- 34 -
forward on individual cases unless specifically requested by the Cabinet or by the
Office of the Minister of the Environment.
- 35 -
6.0 Appended Guidance Documents
TECHNICAL GUIDELINES, DRAFTING GUIDELINES, AND
DECISION-TOOLS
(under development)
I)
Technical Guidelines for Critical Habitat Surveying
Context
General
Surveying of critical habitat (and residence, in some situations) will, in all cases,
be carried out using the best available, defensible science by professionally
trained individuals. The process will be informed by respect for landowner rights,
consultation with stakeholders, and an acknowledgement of traditional/informal
knowledge.
Where possible and practical, repeatable remote-sensing tools will be the first
option for mapping critical habitat. Reliance upon ground survey techniques
should be minimized wherever possible.
Remote-Sensing Surveys
 {need input from the technical working groups here – standards on software,
hardware, terminology, data acquisition, etc.}
Ground Surveys
 Access to property only with the written permission of the landowner and
notification of the landowner as to survey data, time, etc. (no exceptions).*
 Landowner can accompany survey crew if requested.
 “leave it as you found it” rules of property access.
 Post-survey notification of the landowner regarding results, as requested.
 all survey crews to have documented experience and expertise in ground
feature cartography methods and other specializations as required by the
circumstances (botany, geology, etc.).
 In the case of landowner refusal for access to property, default to next best
alternate data source (historical data, remote sensing data, etc) and notify
landowner that this may impart some imprecision in the critical habitat
mapping on their property.
- 36 -
*where the landowner is a First Nation, there are overarching requirements of
consultation which need to be followed which may vary by individual situation.
Furthermore, access to provincial crown lands may be dealt with
comprehensively in Bilateral Agreements and may therefore alleviate the
requirement to seek individual permissions to undertake work on Provincial
Crown Land.
Re-visitation Rate of Surveys
Residence: the re-visitation rate is very contextual to the species and what
type(s) of residence it has. Therefore, it is not practical to establish a minimum
standard for survey re-visitation on residences.
Critical habitat surveys should be reviewed at a maximum of every 5 years and
more frequently if the critical habitat is of a type where it could be reasonably be
expected to change naturally over more compressed time frames or if it is
situated in a landscape undergoing major change.
- 37 -
TECHNICAL GUIDELINES FOR CRITICAL HABITAT AND
RESIDENCE MAPPING
II)
Context
See Section 2.0, Critical Habitat Surveying and Mapping Direction of this
document.
For further information refer to the appended Guidance for Establishing
Population and Distribution Objectives and Identifying Critical Habitat under the
Species at Risk Act.
General Scale, Format, etc.
 The mapping scale standard should be 1:5000 or finer, depending upon the
circumstances.
 GIS format, polygonal geo-referenced data where possible; overlay on up-todate aerial photography where possible.
 Feature classification/description should conform to accepted federal (NRCan)
vegetation, soil, geology, etc., classification standards where possible.
 All maps should contain a disclaimer that the critical habitat mapping is as of a
certain date and that critical habitat mapping is an ongoing, iterative process.
 All maps should contain a clear identification as to whether they are a
representation of the formal identification (i.e., gazetted, on Public Registry
and in the final Recovery Plan) of critical habitat, or are unofficial mapping
intended for program planning and operations only.
Potential or Restorable Species at Risk Habitat Mapping
 The process outlined for the identification of critical habitat contains steps
which involve the determination, by the recovery planner, of areas which have
the potential to become habitat for a species at risk, either through natural
processes or active management. In some instances, it may be required to
map these outputs.
 Mapping of such potential or restorable species at risk habitat should be at a
minimum of 1:10 000 scale, ideally of GIS format and/or overlaid on up-to-date
aerial photography. Again, the object is to inform program planning and
management operations to the best of our ability, not to regulate.
 If this mapping is carried out through Ground Survey techniques, direction
apply regarding landowner notification, etc. apply (see above)
 If the mapping is carried out using remote-sensing techniques, landowner
notification prior to or after the mapping is not required (notification would be
done in due course if any restoration/enhancement activities were targeted for
the area).
- 38 -
Man-made Structures/Substrates
Consistent with the policy approaches to nesting/habitat under such federal
legislation as the Migratory Birds Convention Act and the Fisheries Act,
residence and critical habitat of species at risk under SARA should be evaluated
at their biological face value. The origin of the habitat, residence, or supporting
structures/substrates, whether natural or man-made, is not considered in the
identification process. Such considerations may or may not be part of the
permitting process, depending upon the circumstances of each case.
- 39 -
III) A DECISION FRAMEWORK FOR DETERMINING CRITICAL
HABITAT AND RESIDENCE PROTECTION STATUS
The series of questions below, and the answers to those questions, are not a
scoring system or an algebraic formula which will yield a numeric score, with
pass/fail equivalents for “effectively protected” and “not effectively protected.”
Rather, the outcome of these collective questions and answers will be an
assessment of risk to (or, viewed conversely, of confidence in the effectiveness
in protection of) the residence or critical habitat. This pathway will deliver a
consistent format for assessing protection and explaining decisions, made by the
biologist and/or manager, who are responsible for making recommendations to
the Minister on findings of effectively protected and not effectively protected.
Consistency in this area will also ultimately be strengthened by implementation of
national training for recovery practitioners and management staff.
Q1: What is the Residence/Critical Habitat of this species characterized by
(physically, chemically, temporally)?
 List any and all







geological
vegetative
topographical
climate-related (micro or macro)
physical
chemical
biological
attributes or suite of attributes that cause the habitat to be critical
habitat for recovery of the species at risk.
 List any temporal considerations to the above attributes.
 List any requirements of connectivity, density of polygons in a
landscape, etc.
Q2: What could modify these Residence/Critical habitat elements
(described in Q1) to the point of diminished or eliminated capacity to
sustain the species at risk?
 List any temporary or permanent alteration to the
 topography
- 40 -







geology
soil conditions
vegetation
chemical composition of air/water
surface or groundwater hydrology
micro-climate
sound environment.
which could reasonably lead to diminished capacity of the residence or
critical habitat described in Q1 to recover the species at risk.
Q3: What control mechanisms are in place relative to each of these
potential alterations?
STEP 1:
Is there automatic, non-discretionary prohibition/control legislation against
each of these potential alterations?
(this is an outright prohibition with no mechanism for relief or modification; note
that these are extremely rare)
 What is the enforcement/compliance regime used with this law?
(i.e., active enforcement by officers/inspectors; complaint-driven
enforcement; voluntary compliance)
 What are the consequences of non-compliance? (i.e., fines,
sentences, restoration costs, payback of benefits previously
received, loss of product/facility certification, loss of access to
funding programs, international or government markets)
STEP 2:
Is there legislation enabling a non-automatic and/or discretionary
prohibition/control against each of these potential alterations?

Is this potential prohibition/control enabled by regulation?
 Does a regulation applicable to this residence/critical habitat
exist?
 What are the terms and conditions of the regulation relative to
the potential alterations to the residence/critical habitat?
 What is the enforcement/compliance regime used with this
regulation?
 What are the consequences of non-compliance?
- 41 -
Is this potential prohibition/control enabled by a permit, authorization, or
equivalent?
 Is the permit/authorization mandatory?
 What are the policies for issuing such permits to species at risk
residences or in species at risk critical habitat?
 What is the enforcement/compliance regime used with this
permit/authorization?
 What are the consequences of non-compliance?
 For detailed guidance, see the Critical Habitat and Residence
Permitting section of this Guide.
Is this potential prohibition/control enabled by establishing a system for
land use planning?
 Is this residence/critical habitat subject to such a planning
control?
 What are the terms, conditions and/or policies of the planning
control relative to the potential alterations to the residence/critical
habitat?
 What is the enforcement/compliance regime used with this
planning control?
 What are the consequences of non-compliance?
Is this potential prohibition/control enabled by establishing a code of
practice, operational standard, etc.?
 Is this residence/critical habitat subject to this code of practice,
standard, etc.?
 What are the terms, conditions and/or policies of this code of
practice, standard, etc., relative to the potential alterations to the
residence/critical habitat?
 What is the enforcement/compliance regime used with this code
of practice, standard, etc.?
 What are the consequences of non-compliance?
Is this potential prohibition/control enabled by establishing restrictions
placed on the title/deed of land (easement, covenant, etc.)?
 Is this residence/critical habitat subject to such a restriction on
title/deed?
 What are the terms and conditions of this restriction on title/deed
relative to the potential alterations to the residence/critical
habitat?
 What are the consequences of non-compliance with the
restriction?
- 42 -
STEP 3:
Is there an agreement and/or contract established for this residence/critical
habitat which places a prohibition/control against each of these potential
alterations?
{examples could include: a stewardship agreement; entry of the landowner into a
taxation relief program for conservation lands; sale of surface/sub-surface
mineral rights or resource extraction rights. For detailed guidance, see the
Critical Habitat Agreements and Stewardship Policies section of this Guide}
 What are the terms and conditions of the agreement relative to
the potential alterations to the residence/critical habitat?
 What is the duration of the agreement?
 What are the consequences of non-compliance with the
agreement?
Q4: Do these control mechanisms, individually or collectively, result in the
residence/critical habitat being effectively protected?
Yes - residence/critical habitat is effectively protected; Minister to report such in
Public Registry (for critical habitat).
No - See Procedures for When Residence/Critical Habitat is Considered
Unprotected (individual property or polygon level)
- 43 -
IV)
GUIDANCE FOR ESTABLISHING POPULATION AND
DISTRIBUTION OBJECTIVES AND IDENTIFYING CRITICAL
HABITAT UNDER SARA
(under development)
- 44 -
V)
DRAFTING GUIDELINES FOR MOUS WITH FEDERAL
DEPARTMENTS/AGENCIES FOR CRITICAL HABITAT
(under development)
- 45 -
VI)
DRAFTING GUIDELINES FOR SECTIONS 58 ORDERS
(under development)
- 46 -