Category Archives: Ocean / Fisheries Law

Canada’s National Conservation “Plan”?

Today the federal government announced a commitment of $252,000,000.00 ($252 million) over the next five years for various conservation initiatives that can be broadly divided into three priorities:

– conserving Canada’s lands and waters;

– restoring Canada’s ecosystems; and

– connecting Canadians to nature.

The commitment is broken down as follows:

– $100 million for the Nature Conservancy of Canada to protect sensitive lands over five years.

– $37 million for marine and coastal conservation over five years.

– $3.2 million to assist a national inventory of conserved areas in Canada over five years.

– $50 million to restore wetlands over five years.

– $50 million to help voluntary actions to restore and conserve species and their habitats over five years.

– $9.2 million to connect urban Canadians to nature over five years.

– $3 million for an Earth Rangers program to expand family-oriented conservation programming over three years.

This follows on the footsteps of news from Alberta, earlier today, that the province has commenced lease sales for seven plots of land (consisting of approximately 1700 hectares of mountain caribou habitat) in northern Alberta.

The leasing news from Alberta, itself, came after news that a federal panel of scientists, the Committee on the Status of Endangered Wildlife in Canada, concluded that all of Alberta’s mountain caribou herds should be considered endangered.

Today’s five-year commitment to the conservation of Canada’s environment is a smaller commitment than the Government has made to ensuring broadband service to 280,000 rural homes ($305,000,000.00 ($305 million) over five years).

It is hard to judge the impact of this announcement, but difficult not to be suspicious: it lacks any real detail (despite this being an election promise from three years ago), and follows on the heels of the gutting of federal environmental and fisheries laws by the government.

By James Early

ICJ Whaling Ruling

This week, the International Court of Justice (“ICJ”) ruled (Whaling In The Antarctic (Australia v. Japan: New Zealand Intervening)) against Japanese whaling activities in the Southern Ocean finding that Japan’s JARPA II whaling program was not for scientific purposes and ordering that all permits given under JARPA II be revoked.

You may be familiar with the popular TV show, Whale Wars, which followed marine conservation organization Sea Shepherd’s attempts to dissuade Japan’s whaling fleet from hunting whales as part of it’s Japanese Whale Research Program. This case deals directly with that hunt.

On May 31, 2010, Australia filed an Application at the ICJ against Japan concerning:

“Japan’s continued pursuit of a large-scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic (‘JARPA II’), in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling . . . , as well as its other international obligations for the preservation of marine mammals and the marine environment”.

Australia sought a declaration from the ICJ that Japan was in breach of its international obligations in implementing the JARPA II program in the Southern Ocean and asked that the ICJ order Japan to:

– cease implementation of JARPA II

– revoke any authorizations, permits or licences allowing the activities which are the subject of the application; and

– provide assurances and guarantees that it will not take any further action under JARPA II, or any similar program, until it conforms with international law.

The International Convention for the Regulation of Whaling (“ICWR”) was in issue in this application. Australia argued that JARPA II was not a program for purposes of scientific whaling within the meaning of Article VIII of the ICWR. Japan, of course, maintained that its hunt was for scientific purposes.

The specific Article reads:

“Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.”

Australia contested that JARPA was conceived in order to continue commercial whaling under the guise of scientific research, though Japan asserted that JARPA was launched “for the purpose of collecting scientific data to contribute to the ‘review’ and ‘comprehensive assessment’” of the moratorium on commercial whaling that had been adopted by the International Whaling Commission (“IWC”) in 1982.

In assessing JARPA II, and whether the design and implementation were reasonable in relation to achieving Japan’s research objectives, the ICJ found, amongst other things, that:

– the JARPA II Research Plan lacked transparency in the reasons for selecting particular sample sizes for individual research items;

– the JARPA II Research Plan had a considerable increase in the scale of lethal sampling;

– the stated sample sizes for fin and humpback whales were too small to provide the information necessary to pursue the JARPA II research objectives;

– in light of the fact that JARPA II had been ongoing since 2005 and involved the killing of 3,600 minke whales, the scientific output appeared limited;

– there was evidence that the research program could have been adjusted to require a much smaller sampling size;

Taken as a whole, the ICJ found that JARPA II involved activities that could be broadly characterized as scientific research, but that the evidence did not establish that the program’s design and implementation were reasonable in light of the stated objectives.

The ICJ’s decision is legally binding upon Japan and cannot be appealed.

By James Early.

Fisheries and Oceans Canada ‘fudging numbers’, injunction granted

In February, five member nations under the Nuu-chah-nulth Tribal Council filed for an injunction against DFO, opposing the proposed reopening of commercial herring fisheries in three areas on the west coast of Vancouver Island.

In granting the injunction, the Federal Court of Canada found that DFO had been “fudging numbers” and made a decision that was “not science-based”. In fact, DFO’s own experts agreed that all three of the fishing areas should not be opened as stocks were still low and safe harvesting could not be achieved. Despite this, the Fisheries Minister proceeded to open the fisheries.

In responding to the decision, the DFO’s office stated: “[t]he decision to re-open the herring fishery in these three areas was based on solid fisheries science”. Evidently, not the DFO’s own science, however.

No decision has yet been made by DFO as to the next steps it will take. For media reporting and coverage on the decision, see here.

By James Early.

Australian Shark Cull To Continue

I reported yesterday, here, that Sea Shepherd and Ms. Burden (“Sea Shepherd”) had been seeking an injunction against the State of Western Australia (“WA”) in relation to the ongoing shark cull by means of a Shark Drum Line Program.

Today, the Supreme Court of Western Australia sided with WA and dismissed the application for an injunction. The full decision can be read here.

The Court identified the primary issue as follows:

– Are the Exemption Instruments which are made under s 7(2)(c) of the Fish Resources Management Act (WA) ‘subsidiary legislation’ for the purposes of s 41 of the Interpretation Act 1984 (WA) with the effect that the Exemption Instruments are invalid or inoperative?

WA had made two exemptions (the “Exemption Instruments”) pursuant to section 7(2)(c) of the FRM to allow for the shark cull to occur. Of course, without these exemptions, the taking (meaning “killing”) of various species of shark would be prohibited pursuant to the FRM.

In order to address the primary issue, the Court identified a series of five sub-issues, as follows:

33 First, what is meant by ‘instruments … having legislative effect’ in the definition of ‘subsidiary legislation’ in s 5, and applied to s 41, of the Interpretation Act 1984 (WA)?

34 Secondly, can instruments which exempt individuals or groups of individuals from the operation of an Act have ‘legislative effect’ so that they fall within the definition of ‘subsidiary legislation’ in s 5 of the Interpretation Act?

35 Thirdly, does the Fish Resources Management Act impliedly exclude the operation of s 41 of the Interpretation Act in relation to exemption instruments under s 7?

36 Fourthly, do the Exemption Instruments in this case have legislative effect?

37 Fifthly, if s 41 of the Interpretation Act applies, and if the Exemption Instruments have legislative effect, then does the failure to publish those Exemption Instruments in the Gazette mean that they are invalid or inoperative?

As a short backgrounder, section 41 of the Interpretation Act requires that a written law that confers power to make subsidiary legislation shall be published in the Gazette. The “Gazette” is reference to the Western Australian Government Gazette, and is operated by WA. It exists, essentially, as a tool to communicate legislative changes to the public.

It was argued, by Sea Shepherd, that the Exemption Instruments in this case had legislative effect and that WA failed to publish the Exemption Instruments in the Gazette.

As such, much of the focus of legal argument in this matter was based upon the second sub-issue. Sea Shepherd argued that every exemption to the FRM is legislative in effect because every exemption operates to change the law. However, the Court disagreed.

Further, the Court found that even if the Exemption Instruments made by WA were legislative in effect, section 41 of the Interpretation Act is impliedly excluded by the FRM such that publication of the Exemption Instruments in the Gazette is not required.

Sea Shepherd has not yet announced what its next move will be, simply stating that it will continue to work to save the sharks of Western Australia, exploring all options available to it.

By James Early.

Western Australia Shark Cull Decision Imminent

On March 5, 2014 a decision is expected from the Supreme Court of Western Australia in relation to Sea Shepherd Australia Ltd. (“Sea Shepherd”) and Sharon Ann Burden’s (“Ms. Burden’s”) application for judicial review of a decision by the State of Western Australia (“WA”) on the issue of “shark mitigation”.

For most of you, Sea Shepherd likely needs no introduction. You may also recall that Sharon Ann Burden’s son, Kyle Burden, died at the age of 21 as a result of a shark attack while bodyboarding in Bunker Bay, Western Australia, in 2011.

It was as a result of this death, and several others over the course of two years, that WA Premier, Colin Barnett, made the decision to place baited hooks along the coast to catch sharks and licenced shark hunters to patrol the coastal waters and kill any shark bigger than 3m in length.

The Shark Drum Line Program is essentially a tool to allow licenced individuals to [h]umanely destroy any white shark, tiger shark or bull shark that is greater than 3m total length caught on the drum lines.

It was this decision that led to Sea Shepherd and Ms. Burden’s application for judicial review.

In announcing the commencement of legal action, Sea Shepherd set out the reasons for the judicial review on its website:

– The WA Fisheries report by the Bond University in 2012 did not recommend the use of drum lines and nets as shark mitigation for Western Australia, as baited drum-lines and shark nets do not guarantee that beaches are free of sharks of a size or species that pose a risk to humans.

– The WA Fisheries Nov 2012 Shark Correlation Report, stated that most Great White Shark attacks occur offshore, in deeper waters, with only one of the 26 shark attacks in WA occurring less than 30 metres from the shore. The highest number of attacks occur more than 1km offshore, with scuba divers and snorkelers (44%) having the highest incidence, followed by surfers and sea kayakers (37%).

– Recent polls have shown that between 80-95% of Australians are against the WA government’s shark cull program.

– Using large hooks has not minimised the catching and killing of smaller sharks, including legally protected Mako Sharks.

– The treatment of undersized live sharks and the condition they are being released in gives them little to no chance of survival. Based on current cull numbers, an estimated 140 Tiger Sharks will be killed by the end of the program, far more than the original estimate of 10-20, made by the WA Department of Fisheries risk assessment. This will have a significant impact on the population of near-threatened Tiger Sharks.

– The WA Fisheries Department and Premier Colin Barnett acknowledge that their drum lines are drawing sharks closer to popular beaches and surf spots, which led to them removing the drum lines for the Rottnest Channel Swim. Sharks caught on the drum lines are drawing in more sharks, made evident by sharks being pulled up with large chunks taken out of them by even larger sharks. Some distressed sharks are throwing up their stomach contents 1km off our popular swimming and surf beaches leaving burley oil-like substances in the water, which attracts larger sharks.

– A recent report by Professor Jessica Meeuwig on the effectiveness of the Queensland drum line program found that shark-related fatalities in Queensland have declined in both areas with and without drum lines, with the steepest rates of decline occurring before the drum lines were installed. The ecological cost of drum lines is high, with 97% of sharks caught since 2001 considered at some level of conservation risk, and 89% caught in areas where no fatalities have occurred.

– Effective solutions exist that make our beaches safer and help minimise risk, both immediate and long-term, such as tagging and research.

– The global science community is crying out for more research and science on Great White Sharks. 100 shark experts and scientists wrote an open letter to the WA Government stating their drum line program would not work.

– There are massive ecotourism opportunities for Great White Sharks, like those currently in place in countries like South Africa.

– The Great White Shark is an IUCN Red-Listed species vulnerable to extinction, legally protected under Federal Environment laws, and an APEX predator critical to the health of our oceans.

– Global shark populations have been wiped out in some places by over 90% due to overfishing.

– Sharks maintain the health of our precious marine ecosystems, oceans that provide humans with most of the oxygen we need to breathe.

– According to the WA Fisheries, the presence of sharks off the WA coast is an indication of a healthy marine environment.

– The world is condemning the WA government shark cull.

The judicial review is predicated on the allegation that the sharks that have, or will be, taken are protected pursuant to WA statute and, therefore, the taking of those sharks is unlawful. As a result, it is claimed that the decisions and conduct of WA are:

– ultra vires the Fish Resources Management Act and regulations thereunder (“FRM”);

– have been, or are affected by jurisectional error; and

– as such, are not decisions or conduct capable of lawfully affecting rights, duties or obligations.

The sharks targeted by the shark mitigation efforts are alleged to be “totally protected fish” and the FRM prohibits the taking of totally protected fish (the definition of “take” includes “kill… by any means”). The FRM establishes that Great White Sharks are totally protected fish. The FRM further establishes that Whaler Sharks (which include Bull and Tiger) are totally protected fish in certain circumstances based upon size and location.

Check back tomorrow for a short commentary on the expected WA Supreme Court decision.

By James Early.

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.

Environment Canada Search Warrant Stands

Last week the Supreme Court of British Columbia dismissed an application by Haida Salmon Restoration Corporation (“Haida Salmon”) to set aside a search warrant relating to ten counts of ocean disposal under the Canadian Environmental Protection Act (“CEPA”).

Environment Canada obtained the search warrant believing that Haida Salmon and related parties had loaded substances containing iron onto the “Ocean Pearl” to be disposed of into the Pacific Ocean without the appropriate permits.

Science tells us that ‘iron fertilization’ of the ocean may stimulate plankton growth or algal blooms and that, in turn, this may be an ideal way to store carbon. However, the wider side-effects of iron fertilization are not currently known.

Haida Salmon argued, unsuccessfully, that the search warrant was not based upon any violation of Canadian law or, alternatively, that the definition of “disposal” in the CEPA is vague and, therefore, unenforceable and contrary to the Canadian Charter of Rights and Freedoms. Haida Salmon abandoned this latter argument during the course of its application.

In finding in Environment Canada’s favour, Mr Justice Voith determined that:

“[i]t is not for the issuing justice, nor for the reviewing judge… …to weigh the “niceties of legal argument”. The function of the issuing justice is to determine if the basic elements of the offence(s) at issue have been made out on the face of the Information to Obtain”.

Essentially, in allowing the search warrant to stand, the Court recognized that it is not necessary for Environment Canada to have a perfect case, just that the Information to Obtain set out at least some basic elements of an offence.

For a full transcript of the decision, see: Haida Salmon Restoration Corporation v Environment Canada, et al [2014] BSCS 151.

By James Early.