Government Fails in Species Protection

On February 14, 2014, the Federal Court of Canada determined that the Ministers of Environment, and Fisheries and Oceans, acted unlawfully in failing to propose recovery strategies for the Pacific Humpback Whale, the Nechako White Sturgeon, the Marbled Murrelet and the Southern Mountain Caribou within the statutory timeframes prescribed in the Species At Risk Act, S.C. 2002 c. 29 (“SARA”).

SARA requires that, where a species is identified as being endangered, threatened or extirpated, the competent minister must publish a proposed recovery strategy within a fixed period of time, and publish a final recovery strategy shortly thereafter.

A number of Environmental NGO’s, including the David Suzuki Foundation, Greenpeace Canada and the Sierra Club of British Columbia Foundation, commenced Judicial Review proceedings in the Federal Court of Canada seeking declaratory relief regarding the Ministers’ conduct and orders of mandamus to compel the Ministers to perform their statutory duties.

The action prompted the Government to begin to fulfill its duties including publishing proposed recovery strategies for three of the four species before the hearing commenced, as well as the publication of the final recovery strategy for one of the species. These were, however, several years after the expiry of the relevant statutory timeline.

Of course, one of the species at risk is the Pacific Humpback Whale. It was in relation to this species that the final recovery strategy was released on October 21, 2013 – more than four years after it was due. It was released, however, two months prior to the Joint Review Panel for the Enbridge Northern Gateway Project (“JRP”) decision to recommend approval of the construction of the Northern Gateway Pipeline, which would facilitate the transport of bitumen, by tanker, through identified critical Pacific Humpback Whale habitat.

Pursuant to s. 2 of SARA, critical habitat is defined as habitat that is necessary for the survival of the species in question. As a result of the final recovery strategy, the Pacific Humpback Whale benefits from mandatory (as opposed to discretionary) protection.

As it relates to the Northern Gateway Pipeline, the JRP suggests that, in deciding to recommend approval, it took a precautionary approach and found that the project would not have a “significant adverse impact” on the Pacific Humpback Whale.

So, to take stock for a moment: the Pacific Humpback Whale is threatened; protected by a final recovery strategy; and its “critical habitat” has been identified. As such, shouldn’t SARA prevent any adverse impact if it is to achieve its goal? Let us remind ourselves that the goal of SARA is to:

…to prevent wildlife species in Canada from disappearing, to provide for the recovery of wildlife species that are extirpated (no longer exist in the wild in Canada), endangered, or threatened as a result of human activity, and to manage species of special concern to prevent them from becoming endangered or threatened.

The JRP concluded that there would be an adverse impact to the threatened Pacific Humpback Whale. In any event, however, it made a decision to create a greater risk, for a species already at risk. There is something fundamentally wrong with this. For a further discussion, see here. For legal proceedings that have arisen as a result of the JRP decision and its implication for Pacific Humpback Whales, see here.

Back to the matter at hand, the Federal Court of Canada, in addition to declaring that the Minsters’ actions were unlawful, also permitted the applications for manadamus to be adjourned sine die (essentially meaning: sometime down the road). This looming threat of further court action should, hopefully, keep the Federal Government on its toes with regard to completing the long-outstanding final recovery strategies for the Nechako White Sturgeon, the Marbled Murrelet and the Southern Mountain Caribou.

By James Early.