BACKGROUNDER: Nooksack Dace Lawsuit has Widespread Implications for Endangered Species

Canada's Species at Risk Act (SARA)

The federal Species at Risk Act (SARA), which came fully into force in 2004, is Canada’s national law to protect endangered species.

One of the main tools used in SARA to help an endangered or threatened species survive and recover is the recovery strategy. A recovery strategy is a scientific document written by experts on a species. This document reviews the biology and conservation status of the species, what it needs to survive and recover, and the threats faced by the species.  Other later documents under SARA, called action plans, provide a more detailed management plan setting out measures to achieve survival and recovery.

SARA explicitly recognizes that conserving a species’ habitat is key to its conservation. SARA requires that the habitat necessary for an endangered species’ survival or recovery (called “critical habitat”) be identified in the recovery strategy for that species “to the extent possible, based on the best available information”.

Under SARA, protection of critical habitat occurs only if that habitat is identified in a recovery strategy or action plan. Unlike recovery strategies which must meet mandatory timelines, SARA contains no time limits for action plans. Thus, failure to identify critical habitat at the recovery strategy stage risks indefinite delay in protecting that habitat.

Systemic failure to identify critical habitat in recovery strategies

More than 80% of Canada’s species at risk are endangered primarily because of habitat loss. The longer we wait to identify and protect their critical habitat, the less chance they have of surviving, let alone recovering.

In the case of the Nooksack dace, scientists on the Recovery Team mapped the location of its critical habitat and included those maps in a draft recovery strategy. However, DFO officials removed these maps from the final recovery strategy.  The Nooksack dace is just one example of a systematic failure by the federal government to identify and protect critical habitat for endangered species. Across Canada, 104 species have final recovery strategies – but only 23 have critical habitat identified in their final recovery strategies.

Nooksack dace ruling applies to numerous BC species

Justice Campbell ruled that the Department of Fisheries and Oceans has been using an unlawful policy direction. That policy directs that critical habitat should be removed from all recovery strategies for all aquatic species in BC. It appears that DFO has applied its unlawful policy to at least 20 other species in British Columbia.

Lawsuits brought or threatened by environmental groups have ensured that 3 of these 20 species have had their habitat identified (Southern and Northern resident killer whale populations, and Nooksack dace). However, 17 recovery strategies for BC species need to be re-written to identify critical habitat and comply with SARA. These 17 species are:

Enos Lake Stickleback Species Pair benthic

Enos Lake Stickleback Species Pair limnetic

Paxton Lake Stickleback Species Pair benthic

Paxton Lake Stickleback Species Pair limnetic

Vananda Creek Stickleback Species Pair benthic

Vananda Creek Stickleback Species Pair limnetic

Hotwater Physa

Morrison Ck. Lamprey

Cultus Pygmy Sculpin

Sea Otter

Vancouver Lamprey

          Blue Whale (Pacific)

Leatherback Turtle (Pacific)

Sei Whale (Pacific)

Fin Whale (Pacific)

Northern Abalone

Transient Killer Whale

Feds’ own report confirms our concerns

Environmental groups’ concerns are echoed by a 2006 independent review of the implementation of SARA commissioned by the federal government. This review concluded that recovery strategies were not identifying critical habitat as mandated, and warned that this failure could jeopardize the implementation of SARA. A five-year parliamentary review of the Act is now underway in Ottawa.

Facts about Nooksack dace and its habitat

The Nooksack dace is a small minnow-like fish less than 15cm long.  Nooksack dace in Canada are found only in four lowland streams in the Fraser Valley of BC.

Nooksack dace share their habitat with Cutthroat Trout, juvenile Coho Salmon, Lamprey, Sculpins, and the Salish Sucker (another endangered native fish).

Habitat loss is the key threat to survival for the Nooksack dace.

The Committee on the Status of Endangered Wildlife in Canada (COSEWIC), Canada’s official national body responsible for assessing species at risk, wrote in 1996 in its Status Report on the Nooksack Dace: “…, habitat suitable for adult Nooksack Dace will continue to decrease and the species probably will go extinct in Canada in the next one or two decades. … Habitat loss through human disturbance is the greatest threat facing the Nooksack Dace in British Columbia. Housing developments, shopping malls and industrial parks are replacing fields and wooded areas in the range of this species at a dizzying pace. … The shrinking Canadian [Nooksack dace] populations are sandwiched between a deteriorating environment upstream and unsuitable habitat downstream.”