This comment is my own view and does not necessarily reflect the views of my employer.

There is a provision in the Court of Queen’s Bench Act, s. 11 to allow a reference to the Masters by a judge. My experience has been that this is a little used provision however.

1. THE REPUTATION & TRUST CANADA ENJOYS IN INTERNATIONAL COMMUNITY WILL BE ENORMOUSLY SHATTERED!

“Canada cannot be trusted to stand by its bargain”

2. CANADIAN GOVERNMENT WILL LOSE TRUST AMONGST ITS SUBJECTS IN ADDITION TO INTERNATIONAL COMMUNITY

“Could be difficult for Canada to take the lead on agreements that matter to Canadians”

3. WITHDRAWAL FROM KYOTO PROTOCOL WILL SET A BAD PRECEDENT FOR THE REST OF THE INTERNATIONAL COMMUNITY.

“if Canada withdraws from Kyoto will it not make it politically easier for other states simply to withdraw from other Conventions that are no longer convenient to them?”

4. BLAME GAME DOES NOT HELP AND SUIT TO THE IMAGE OF DEVELOPED COUNTRIES BOTH AT HOME & AT INTERNATIONAL LEVELS.

“When the executive ratifies an international treaty it does so on behalf of the Government of Canada whatever the form of any subsequent administration. International legal obligations attach to the state and not to a particular administration.”

Very cogent write up!

I recognize that much of the delay in the case of the polar bear is due to extensive consultation with the Inuit. I don’t mean to disparage this. It’s obviously a constitutional requirement as well as a requirement of SARA s. 27(2)(c). Where consultation is required, you are right to highlight the fact that the 9-month deadline in SARA is somewhat unrealistic. What I mean to point out are two things: 1. if such delays are inevitably part of the listing process, should Cabinet not have the authority to designate a species at a higher listing level (i.e. threatened, or endangered) if information has changed to warrant this, without having to return to COSEWIC for a new recommendation and creating further delay? 2. Why are such extensive consultations appropriate when the only decision on the table is a special concern designation, which has no immediate regulatory implications? Similar to my argument about the cost-benefit analysis — it seems to me that this kind of extensive consultation should be happening after the listing decision, when specific regulatory options are being considered.

Your point about the subpopulations is interesting and one that I hadn’t thought of. It turns out that COSEWIC considered this in its 2008 assessment and concluded: “Distinctions between subpopulations or larger-scale divisions based on ecoregions are insufficient for status to be assigned to designatable units below the species level” (iv). The COSEWIC guidelines on designatable units states “Designatable Units should be discrete and evolutionarily significant units of the taxonomic species, where “significant” means that the unit is important to the evolutionary legacy of the species as a whole and if lost would likely not be replaced through natural dispersion.” (http://www.cosewic.gc.ca/eng/sct2/sct2_5_e.cfm). However, in the COSEWIC 2008 assessment of the polar bear, the most recent scientific information suggested there was “considerable genetic interchange among subpopulations” (10) and that “identified units are not evolutionarily significant” (10). The finding of genetic interchange was supported by aboriginal traditional knowledge (13). I think that the DU suggestion is an interesting one for facilitating concrete steps toward species protection in the face of uncertainty and delay. However, there is a danger in managing subpopulations as if they are distinct when they are not. Conservation might depend on managing threats that endanger the entire population and that account for biological connections that exist between each subpopulation. So in the long run, excessive DU use may hamper SARA’s objectives.

Your third point raises the really interesting question: to what extent can endangered species legislation leverage climate change mitigation measures? This certainly came to the fore when the U.S. listed the polar bear as threatened under the ESA (see, e.g. S.J. Morah, “The Endangered Species Act: A New Avenue for Climate Change Litigation?” (2008) 29 Pub. Land & Resources L. Rev. 24). It will be interesting to watch for an intersection between SARA and GHG emissions now that the polar bear is officially listed. Even though SARA’s requirements for a management plan are fairly open-ended, I don’t see how the management plan can avoid addressing climate change.

I have nothing to add to your fourth point, other than the COSEWIC assessment highlights this problem and emphasizes the need for co-management agreements. I would hope that an listing under SARA would only facilitate such initiatives.

Four comments for you. First, the delay is regrettable but one of the reasons for the delay is the need to consut with Inuit and with regional wildlige organizations under land claim agreements.

Second, the PBSG http://pbsg.npolar.no/en/ identifies 19 relatively discrete populations of polar bear and the boundaries that are associated with these populations. Given that, and given that some of these subpopulations are considered to be in decline and some not, why does the US list PB as threatened throughout its range (and not DPSs) and why does Canada not consider listing “a geographically or genetically distinct population” (see definition of ‘wildlife species’? After all we have issued a negative NDF under CITES but we have limited it to the Baffin Bay population. If we can make that decision for CITES why not for a listing decision?

Third, if the main problem for bears is climate change why are we considering withdrawing from Kyoto? I don’t expect you to answer this!

And fourth the other problem facing some subpopulations (eg Baffin Bay and South Hudson Bay) is overharvesting largely due to the fact that these are jurisdictionally shared populations. What we need most in these case are robust user to user agreements that establish a TAH and provide a scheme for allocating the TAH between communities that harvest that subpopulation.

Nigel

Eric