Federal Court Promotes Protection of Vulnerable Species
Judah Harrison for The Lawyers Weekly
October 9, 2009
Two recent Federal Court decisions have strongly rebuked federal ministers for ignoring science when exercising their mandatory duties for species at risk.
The decisions were rendered in two separate judicial review applications brought by not-for-profit environmental groups, represented by Ecojustice lawyers, which challenged federal ministers for failing to comply with subs. 41(1)(c) of the Species at Risk Act (SARA). This provision requires that the recovery strategy of an endangered or threatened species include "an identification of the species' critical habitat, to the extent possible, based on the best available information."
As recognized in the preamble of SARA, habitat protection is key to the conservation of species. The loss and degradation of habitat is the primary threat facing approximately 84 percent of species at risk in Canada. "Critical habitat," a subset of habitat, is defined in the Act as "the habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species' critical habitat in the recovery strategy or in an action plan..."
The identification of a species' critical habitat under subs. 41(1)(c) is crucial to obtaining protection under SARA. For example, under s. 58, only identified critical habitat can be legally protected.
The first decision, Alberta Wilderness Association v. Canada (Environment),  F.C.J. No. 876, arose when the minister of the environment issued a recovery strategy for the Greater Sage-grouse, an "endangered species" under SARA. This means that, by definition, it is facing imminent extirpation (it no longer exists in the wild in Canada, but exists elsewhere in the wild) or extinction.
Sage-grouse require various types of habitat for survival, including breeding habitat known as "leks." At the time the recovery strategy was issued, the location of many active leks were well-known - some even had names. Despite this, the minister of the environment issued a recovery strategy that failed to identify any critical habitat whatsoever, on the basis that "knowledge gaps" remained. In other words, the minister refused to identify any critical habitat because he could not identify all of it.
In allowing the application, Justice Zinn held that it was unreasonable for the minister to not identify any critical habitat for the Greater Sage-grouse given how much of it was known, holding "[i]f leks are sufficiently notorious to be... named... it is unreasonable to state that they cannot be described."
In making this ruling, Justice Zinn held that subs. 41(1)(c) affords the minister no discretion but "requires that the Minister identify in a recovery strategy document as much critical habitat as it is possible to identify at that time, even if all of it cannot be identified, and to do so based on the best available information then available." Justice Zinn also noted that this interpretation reflected the precautionary principle, codified in s. 38 of SARA.
In Environmental Defence Canada v. Canada (Fisheries and Oceans),  F.C.J. No. 1052, Justice Campbell ruled that the application was "absolutely necessary," characterizing the case as one involving "the creation and application of policy by the Minister [of Fisheries and Oceans] in clear contravention of the law, and a reluctance to be held accountable for failure to follow the law."
This case centered around the Nooksack dace, an endangered minnow that exists in only four streams, all in B.C.'s largely urbanized Fraser Valley. Dr. Mike Pearson, Canada's leading conservation expert on the Nooksack dace and author of its recovery strategy, personally waded through each of these four streams, meticulously mapping where dace occurred.
His maps were deleted after the Ministry of Fisheries and Oceans (DFO) issued a policy directive that "critical habitat should be removed from all recovery strategies" for all endangered and threatened species in the Pacific region.
Three weeks prior to the hearing, the minister of fisheries and oceans conceded that DFO had acted unlawfully, but sought to place limits on the nature of the error. In rejecting these limits, Justice Campbell issued an interlocutory ruling that "a statutory controversy was at the heart of the judicial review which requires a comprehensive interpretation of the relevant provisions of SARA."
In providing his interpretation of SARA, Justice Campbell focused on its purposes, including the explicit purposes set out in s. 6. Justice Campbell also cited the need for any interpretation to conform to the precautionary principle and the Convention on Biological Diversity, both of which are incorporated into SARA. Justice Campbell held that political and socio-economic considerations are not valid in the minister's identification of critical habitat. In addition, Justice Campbell ruled that in identifying critical habitat, the minister is required to identify both its location and its attributes.
Both decisions provide strong support for Canada's most vulnerable species and the protection of their habitat.
Judah Harrison is a lawyer with Ecojustice Canada (in Vancouver), formerly Sierra Legal Defence Fund. He is co-counsel in the Nooksack dace proceeding discussed in this article.