The western chorus frog, which is just 2.5 centimetres long, was named for its musical nature.
Both the male and female amphibians call in large choirs, and male frogs use a specific call to attract mates. When singing in groups, the frogs’ high-pitched tune resembles crickets more than it does a traditional frog’s croak. These tiny frogs, weighing no more than one gram, can be found in certain locations across Canada, the United States, and the Gulf of Mexico.
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However, according to the Species At Risk Act (SARA) public registry and Ontario Nature, populations of western chorus frogs have declined by 37 per cent in Quebec and 30 per cent in Ontario over the past decade – so the government placed an emergency order on the species to support its recovery and made it a criminal offense to develop in its habitat.
“What happened in this case, was there was a science review done and a variety of pieces of information were brought together and it was determined that while there wasn’t an imminent threat to the survival of the species, the development did pose a threat to the recovery,” David Browne, the director of conservation for the Canadian Wildlife Federation, told Global news.
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Among the areas covered under the order was a suburb in La Prarie, Que., just south of the St. Lawrence river, part of which was to be developed into a 1,200-housing unit by the Groupe Maison Candiac. The company was ordered to scale back their development by 171 units, and later took the government to court to protest the decision.
While it may seem like a small action, Justice Rene LeBlanc’s ruling has been heralded as a landmark decision by Canada’s conservation community, one which could potentially restrict development projects and other corporate ventures where species face extinction in the future.
“It’s a bit of a wake up call to take this seriously,” said Browne. “There is some responsibility for Canadians and industry to not do the wrong things.”
The judgement was received with mixed reactions however, as both Quebec, the town of La Prarie and other members of the private sector felt that the government overstepped by intervening.
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“As a matter of fact, we still believe the federal government has no constitutional jurisdiction on the chorus frogs that are located on private lands. This jurisdiction clearly belongs to the provinces according to the constitutional act. The Parliament of Canada has only jurisdiction on aquatic species, migratory birds and other species located on federal Crown lands. The Species At Risk Act recognizes this and splits federal and provincial jurisdiction accordingly,” Alain Chevrier, Candiac, House Group’s lawyer, told Global News in a statement.
The government of Quebec, having supported the housing development, accused Ottawa after the order was placed of “breaking the spirit of collaboration” between provincial and federal departments. The mayor of La Prarie also told a local newspaper that cutting the housing project would reduce municipal revenue by $30 million over 20 years.
Chevrier confirmed that Groupe Maison Candiac has appealed Justice LeBlanc’s decision.
What is the Species at Risk Act (SARA)?
The Species At Risk Act, or SARA, was passed in 2002 and came into effect in 2004. The act allows the federal government to provide legal protection for species whose existence or recovery in a certain area is threatened. The act was designed to complement existing provincial jurisdiction to exercise their own conservation programs.
The interpretation of the law has always been marginally unclear, as only two “emergency orders,” such as the one placed on the habitat of the western chorus frog, have been passed down since 2002 – the first was to protect the sage grouse on Crown lands located in southern Alberta.
More importantly, this marks the first time that the law has been used to stop a development on private property, which Candiac, the province of Quebec, the City of La Prarie each argue is unconstitutional.
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It’s important to note that in the case of this frog, the province of Quebec had laid out a protection and conservation plan of its own before the federal government stepped in, and that SARA does include a provision requiring the government to consider the socioeconomic costs of halting economic activity in communities before doing so.
“The department in Quebec already had a plan in place, dated from maybe five years, but they had different recovery plans for different locations in Quebec. Apparently it was not enough for the federal government,” said Alexandre Moreau of the Montreal Economic Institute.
The institute issued a statement shortly after LeBlanc’s ruling warning that allowing the government to make such rulings on private lands could harm Canadian economic development
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“I think it’s fundamental that the government respect the spirit of the regulation which clearly states that the government should take into account the socioeconomic cost,” he continued, citing the perceived economic threat to the community of Le Prarie.
Furthermore, Groupe Maison Condiac’s lawyer, Chevrier, argued that the government created a criminal offense in order to supersede provincial jurisdiction, which had already approved the housing development and invested money to protect the chorus frogs in accordance with authorizations by Quebec’s environment minister.
“At the request of the Quebec government, the company had to invest many hundred thousands dollars to protect the chorus frogs in accordance with this authorization,” Chevrier added.
Species protection as a “fundamental societal value”
When explaining the reasoning behind his decision, LeBlanc cited environmental protection and conservation of biodiversity as a “fundamental societal value” among Canadians, and that criminal law must be able to adapt according to Canadian values.
A joint study conducted by several Canadian universities in February 2017 found that 89 per cent of respondents agreed or strongly agreed that it’s important to protect the extinction of wildlife and animals, 82 per cent agreed that landowners have a moral obligation not to harm endangered species, and 80 per cent agreed that this goal should be accomplished even at the expense of industrial activity.
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“I think there is an across-the-board expectation that the government protects our environment and protects the species that are most at risk,” said Sarah Otto, the director of the Biodiversity Research Centre at the University of British Columbia.
She adds however, this sentiment won’t become a reality unless Canadians make sacrifices.
“It is our expansion of the human demands on the land that are putting species at risk. So that means there’s necessarily going to be a socioeconomic impact. Almost always, because it’s our activities that are causing the problem, we have to make a choice,” she said.
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Browne states that while this ruling makes the government’s stance on protecting endangered and at-risk species abundantly clear, the courts should remain a last resort.
Can the economy and the environment walk and in hand?
This case is the latest in a longstanding debate – can we protect the environment without hurting the economy?
Environmental advocates and economists alike agree that such a feat requires give-and-take from both the corporate and the conservation community.
For example, there is a provision in SARA that allows corporations who take on significant financial hits as a result of an emergency order to receive compensation to reduce those costs. Browne points out that this may be a solution in certain cases, and Groupe Maison Candiac agrees.
“In other words, when a governmental authority deprives someone’s property from any value without providing for any compensation, then such decision must be annulled by the Court,” Chevrier wrote in his statement.
It’s the hope of both Otto and Browne that the courts will become a last resort when planning industrial developments going forward.
“We can’t move towards a situation where we’re forcing the government to issue emergency orders all over the place,” Browne states.
He says that Canadians should be “putting the economy and the environment hand in hand, and deciding what kinds of trade-offs we’re willing to make to keep the species on our land in advance.
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Otto acknowledges that it’s currently difficult for corporations to determine whether the land they’re building on may house endangered or at-risk species. The SARA public registry requires readers to search through each species to discover where in the country they’re located.
“Across the board, one of the things that we’re asking for is a database where it’s very easy to search. Environment Canada has promised to make this searchable database available but we don’t know when,” she states.
While the result of the two-year case has made history for some and led to financial upheaval for others, the western chorus frog will live to sing another day.