Most waste businesses have more experience with provin- cial regulators than they do with their federal counterparts. But there are exceptions. These include the Canadian Environmental Assessment Act, various stipulations under acts such as the Fisheries Act or the Navigable Waters Act and now Bill C-33, the Species At Risk Act (SARA).
Federal Environment Minister David Anderson introduced this bill on April 11, 2000, long after the earlier Endangered Species Protection Act died on the order paper in 1996. As such, this is the second attempt of the federal government to deal with its international endangered species obligations.
At first blush this legislation may seem to affect wilderness areas, wetlands and forests more than developed industrial areas, but the fact is that SARA will have significant impacts on many industries, including waste management.
The purpose of the proposed legislation is to prevent wildlife species from extinction or extirpation (i.e., where species cease to exist within Canada but exist elsewhere). The bill makes it illegal to kill, harm, harass, capture or take any individual of a listed species and also prohibits the trade in any listed animals.
While the bill attempts to prevent endangerment or threat in the first place, it also encourages activities that assist in the recovery of species that are extirpated, endangered or threatened as a result of human activity.
SARA provides a “listing” of species that are at risk. The Committee on the Status of Endangered Wildlife in Canada, in existence since 1978, assigns species to the various lists. The Committee is comprised of experts appointed by the federal environment minister from federal, provincial and territorial governments and non-governmental organizations.
In order to begin the listing process, a status report on species must be provided that has been either commissioned by the Committee or provided on a non-solicited basis from any other source. After a one-year evaluation the completed assessment is forwarded to the environment ministry and is made public through a public registry.
Potential political influence enters the process as it is then up to the federal minister to make a recommendation to Cabinet to list the species. Cabinet chooses whether or not to accept the minister’s recommendation.
The protection of any given endangered species is not something that would normally affect the waste management industry. However, the industry will be impacted by the other central tenant legislation: the protection of “critical habitat.” SARA prohibits the destruction of the critical habitat of listed endangered or threatened species.
Should private property be included in the classification of critical habitat, this could well preclude industrial undertakings such as the development of new waste management facilities (i.e., transfer stations) or facilities that require more sizable footprints (like landfills). While SARA makes provision for some compensation for businesses, the details of the compensation are yet to come in the form of regulations. It’s difficult to know what the true impact on a business would be of the designation of land as critical habitat.
In the current political environment it’s no surprise that the penalties of contravention of the bill will be quite high. More serious convictions will carry maximum fines of $1-million for corporations and $250,000 and/or imprisonment of up to five years for individuals. Offences that occur over more than one day will be subject to a possible conviction for each and every day. These are the fines for first offences; subsequent offences will result in maximum penalties that are double the penalties listed above.
The proposed Act also provides for a number of different orders. Some that are remedial or preventative in nature, others allow such novelties as scholarships for environmental studies students. Some require the completion of environmental audits.
Directors or officers of companies involved in offences will also be subject to liability under SARA. As the bill creates “strict liability offences,” the due diligence defense will be available to those charged.
Implications for industry
SARA provides the framework to implement the general policy objective to protect endangered species. However, as always, the devil will be in the details. At this time, the details with respect to compensation are unknown.
Also still a mystery is which habitat Cabinet will agree to designate as critical.
The obvious danger is that land that is determined to be critical habitat will not necessarily be pristine wilderness. As waste management facilities are required in all parts of the country, it’s quite likely that at least some will be located in regions subject to such designations under SARA.
At this time industry stakeholders can’t do much to prepare for the legislation except keep abreast of developments and ensure that government is aware of the specific concerns of individual operators as well as the industry generally.
Industry stakeholders should make themselves aware of any potentially endangered or threatened species that may use land they own. Perhaps more importantly, industry participants may wish to conduct wildlife audits of land they are considering for purchase as well as the flora and fauna that exist on the land.