Canadian Landowners May Suffer Restrictions Due To Species At Risk Decisions

Janice Walton for The Lawyers Weekly

October 9, 2009

The Federal Court of Canada recently issued two significant decisions interpreting the critical habitat provisions of the Species at Risk Act (SARA). The decisions could have far-reaching impacts on resource users and landowners across Canada.

SARA requires the federal minister of the environment to develop recovery strategies for all endangered and threatened species. The recovery strategy must identify critical habitat "to the extent possible." The significance of this is that once critical habitat is identified, SARA also requires the federal government to take steps to protect it.

Two judicial reviews were launched by a number of environmental non-governmental organizations on the grounds that the government was aware of the location of certain critical habitat, and consequently should have included it in recovery strategies.

The first, Alberta Wilderness v. Minister of Environment, [2009] F.C.J. No. 876, involved the Sage-grouse, an endangered prairie bird (the "Sage-grouse decision" ). The second, Environmental Defence Canada v. Minister of Fisheries and Oceans, [2009] F.C.J. No. 1052, was regarding the Nooksack dace, an endangered minnow that lives in B.C. (the "Nooksack dace decision" ).

In both decisions, the Federal Court reached crucial conclusions with respect to interpretation of the definition of critical habitat - when critical habitat must be identified in recovery strategies and the role the analysis of socio-economic impacts plays in the recovery planning process.

Because of these decisions, it is likely that there will be more recovery strategies indentifying critical habitat than has occurred up to this point. The increased likelihood of critical habitat identification also means increased protection of such habitat, and as a consequence, potentially more restrictions on the ability to carry out operations on both public and private land.

In the Sage-grouse decision, the court allowed the application on the basis that the government was aware of the existence of critical habitat and therefore should have identified it. The decision turned on the court's interpretation of statements made in the recovery strategy regarding the need to protect known habitat. In essence, the court took a precautionary approach and held that in the absence of "best available information," the government should consider all the known habitat to be critical, at least until there is further information suggesting it is not.

If the government concludes from the decision that whenever its scientists recommend that known habitat should be given protection or even special management, that habitat meets the definition of "critical habitat," there is a very real prospect that many of the recovery strategies currently under development will identify all known habitat as critical even though the scientific justification for such designation may be scant.

In the Nooksack dace decision, the court held that identification of critical habitat must include two components: a geographical area and a description of the specific identifiable features in that area that are needed to sustain the species' life processes. This aspect of the decision may be of assistance to the many recovery teams currently grappling with what must be included in critical habitat descriptions. But it is unclear as to whether this will make their jobs easier or more complex.

Government documents revealed that officials of the Ministry of Fisheries and Oceans (DFO) had determined that critical habitat should not be included in recovery strategies for policy reasons, and should be postponed to the action planning stage. The court held that the DFO's policy was fundamentally inconsistent with the specific mandatory language in SARA that requires identification of critical habitat in recovery strategies, "to the extent possible."

The court also held that the language in SARA is unequivocal that measures to prevent loss of species must not be postponed for lack of full scientific certainty, and that a socio-economic analysis does not form part of the assessment of what should be in a recovery strategy.

This portion of the judgement is troubling. If socio-economics are irrelevant at the recovery planning stages, then what is the purpose of the consultation that is required with affected parties, including landowners, prior to the recovery strategy being posted to the SARA registry?

This seems at odds with SARA's requirement that "cost effective" measures not be postponed because of scientific uncertainty. How is the planning team able to determine the cost effectiveness of proposed measures if no economic analysis is to be undertaken?

Since critical habitat can be identified either at the recovery strategy or action planning stage, this decision raises the potential for some species to have protected critical habitat on the basis of both a scientific and socio-economic analysis, and others for which science is the only consideration. This is an inconsistency which would appear to be in conflict with SARA's purpose to protect, presumably equally, all species at risk.

Janice Walton is an environmental lawyer with Blake, Cassels & Graydon LLP in Vancouver. She is the author of Blakes Canadian Law of Endangered Species.
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