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Why doesn’t the federal government protect endangered species without Ecojustice* taking them to court?

In December 2010, Ecojustice won their lawsuit against the federal Minister of Fisheries and Oceans for failing to protect killer whale habitat in B.C.   In its plan to protect the whales, (an endangered species) Fisheries & Oceans had left several elements up to the discretion of the Minister, which often means that nothing happens. Now Ecojustice have largely won the appeal.

The federal government appealed, arguing that discretionary provisions under the Fisheries Act were sufficient to protect the habitat of aquatic species.  The Minister argued that retaining ministerial discretion under the Fisheries Act does not undermine protection provided under the Species At Risk Act (SARA) or provide protection that is inferior to that under the SARA.

In its 60-page decision, the Federal Court of Appeal disagreed, holding that section 58 of the SARA had been adopted to avoid destruction of critical habitat of listed endangered and threatened aquatic species through any means.  The scheme under the SARA is compulsory and non-discretionary – so not subject to ministerial discretion.

Minister’s appeal allowed in part

The appeal court did allow the government’s appeal in part.  The trial court decision had included a declaration providing that ministerial discretion does not legally protect critical habitat within the meaning of s. 58 of the SARA, and that, as a consequence, it was unlawful for the Minister to have cited discretionary provisions of the Fisheries Act in the Killer Whales Protection Statement.  The appeal court upheld that declaration except where it would impede the Minister from relying on s. 36 of the Fisheries Act (and regulations adopted under that section) for the purposes of s. 58 of the SARA.

The appeal court found that there may be circumstances where the Minister may rely on s. 36 of the Fisheries Act (which prohibits the deposit of deleterious substances in water frequented by fish unless authorized).  As this provision (and associated regulations) may provide a particular endangered or threatened species the protection mandated under s. 58 of the SARA, it may be appropriate for the Minister to rely on these provisions.  There was no basis upon which the Federal Court judge could have determined whether reliance by the Minister on s. 36 could have been justified, considering the s. 58 SARA provisions.

Accordingly, the court replaced the trial court declaration with the following:

“Ministerial discretion does not legally protect critical habitat within the meaning of section 58 of the Species at Risk Act, and it was unlawful for the Minister to have cited provisions of the Fisheries Act in the Killer Whales Protection Statement where such provisions are subject to ministerial discretion.”  [emphasis ours]

The Court also ordered the government to pay the costs of the appeal, noting that Ecojustice* had been “largely successful in the appeal”.

We do not yet know whether Fisheries & Oceans will seek leave to appeal to the Supreme Court of Canada.

* Ecojustice represented a coalition of 9 environmental groups, respondents in this case: David Suzuki Foundation, Dogwood Initiative, Environmental Defence Canada, Georgia Strait Alliance, Greenpeace Canada, International Fund for Animal Welfare, Raincoast Conservation Society, Sierra Club of Canada and Western Canada Wilderness Committee

by Jackie Campbell

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