Various regulatory measures must be taken to protect species at risk and their habitats under the Species at Risk Act, 2002 (SARA) when there is likely harm from Offshore Wind Energy (OWE) activities. For instance, SARA states that the proponent is not permitted to carry out an activity (e.g. construction of OWE) if such activity destroys any part of the critical habitat of any listed endangered or threatened species. In addition, proponents must obtain permits concerning the likely harmful activities to listed wildlife species. For example, suppose the development of OWE (in any phase of construction, operation, and decommissioning) affects a listed wildlife species, any part of its critical habitat, or the residences of its individuals. In that case, the proponent must obtain a permit from the relevant minister(s) (the minister) based on SARA.
Improvement through Purposive Interpretation of SARA
The Interpretation of SARA should be aligned with the purpose of this Act, which is appreciating the value of wildlife and conserving biological diversity. Here are a few examples of purposive interpretations of SARA that are helpful for ecological sustainability:
– “Harm” to listed wildlife species, which is prohibited based on SARA, is a broad word. For instance, it can include noise from the construction and operation of OWE.
– The minister’s discretion in granting permits for OWE activities is not absolute. If the construction of OWE affects the protected species, some preconditions must be met, and the effects must be “incidental to the carrying out of” the project. First, some pre-conditions must be met in the opinion of the minister before a permit is issued. The minister must believe that all reasonable alternatives to the activity are considered, feasible measures to minimize the impacts of the activity are taken, and the activity will not jeopardize the survival or recovery of the species. Second, the words “incidental to” indicate two possible meanings: i) The effect must be secondary and cannot be central to the activity. For instance, if the development of OWE necessarily leads to any harm to the species, SARA does not confer the discretion to the competent minister to issue a permit; ii) The effect must occur unintentionally, accidentally, and occasionally. For example, if the OWE development activities normally harm a listed species, the minister is not allowed to issue the permit.
– Even when the development of OWE incidentally affects the protected species, the permit must contain terms and conditions necessary for protecting species, minimizing the impacts of OWE on species, and providing recovery plans. For instance, a condition can be if the ongoing activities of OWE threaten the survival or recovery of a species, the competent minister may revoke or amend the permit.
– SARA should be interpreted widely or amended to apply the following conditions in SARA to the minister’s discretion when permitting activity for OWE may destroy any part of the critical habitat of a listed wildlife species: “(a) all reasonable alternatives to the activity that would reduce the impact on the species’ critical habitat 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’ critical habitat”.
Photo by Elianne Dipp
