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toad in handFor the second time this year, the courts have ruled that Canada’s Conservative government has deliberately refused to carry out its obligations under environmental law. The first case (see April 28, 2009 entry) involved Environment Canada’s refusal to report mining discharges under NPRI and the Canadian Environmental Protection Act, 1999. The second involves deliberate breaches of the Species at Risk Act, 2002 (SARA) by the Department of Fisheries and Oceans (DFO).SARA required DFO to adopt a Final Recovery Strategy for several endangered species, including a small fish, the Nooksack Dace. As part of the Strategy for the Dace, they were required to identify (so they can later protect) its critical habitat. Instead, (perhaps to avoid conflict with affected landowners) DFO decided to issue a “Strategy” that deliberately left out the particular location and features of the Dace’s critical habitat. This meant that there could be no legal protection of that habitat.
Once sued, DFO agreed that its refusal to identify the habitat had been illegal. They revised the Strategy, and re-released it with critical habitat locations and features inserted. But DFO still used every possible means to prevent the case from going ahead. As a result, according to Justice Campbell of the Federal Court,

[T]he bringing of the present application was absolutely necessary. This is a story about the creation and application of policy by the Minister in clear contravention of the law, and a reluctance to be held accountable for failure to follow the law…
The [applicants] bring this Application only in the face of overwhelming evidence that the Canadian government is attempting to avoid its obligation to implement the SARA so as to protect Canada’s at-risk species…. The present application brings the constitutional imperative of the rule of law into sharp focus… The Applicants are wholly successful…

See Environmental Defence Canada v. Canada (DFO). What will happen next? The Minister has been formally declared to be in breach of the law, but this seems to have no consequences for him. Neither the public nor the press seems much exercised about our government defying the rule of law. The critical habitat of the Nooksack Dace has been identified, but not protected – that is the subject of a second lawsuit by the same applicants currently before the Federal Court.

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