Co-authored by Valentina Caen (Articling Student)
Canadian courts released two judicial review decisions in May regarding the implementation of species at risk legislation, which indicate a trend towards a broad, expansive interpretation of such laws.
FEDERAL COURT OF APPEAL UPHOLDS CONSTITUTIONAL VALIDITY OF EMERGENCY ORDER POWERS UNDER SARA
On May 15, 2020, the Federal Court of Appeal (Appeal Court) upheld the validity of the emergency order stopping a
development proposal near Montréal in order to protect the
western chorus frog, and in doing so, confirmed that federal orders
under s. 80 of SARA affecting private land are constitutional. For
more information about the emergency order and the prior court
decision, please see our July 2016 Blakes Bulletin: Federal Government Order to
Protect Frog Habitat Stops Land Development in Suburban
Montréal and September 2018 Blakes Bulletin: Court Rules SARA Emergency
Orders are Valid and Compensation May Be
Available.
The Appeal Court determined that the emergency order power, which
has only been used twice, is narrow in scope and intended to deal
with a situation where a species' immediate survival is
threatened and requires urgent action and, as such, does not invade
provincial jurisdiction. The Appeal Court noted that the emergency
provision, which specifically applies to private land for
non-federal species, does not authorize the governor in council to
impose measures to protect the species and designated habitat, but
only to enact provisions prohibiting activities likely to harm the
species and that habitat.
Previous decisions from Canadian courts have established that
environmental protection is one of the 'evils' that
Parliament can address through its jurisdiction over criminal law.
The Appeal Court relied on these decisions to confirm that federal
jurisdiction over criminal law must allow Parliament to act to
prevent the loss of wildlife species, in particular in the face of
a threat of imminent harm. The precise identification of prohibited
activities and the area within which the habitat of a listed
wildlife species must be protected was also considered by the
Appeal Court to be a more adequate approach than an unnecessarily
broad measure that may have a disproportionate impact on the
exercise of provincial powers. In the Appeal Court's view,
providing the governor in council with the authority to carefully
tailor the prohibited activity to the circumstances in which the
imminent threat to the survival or recovery of a species arises was
a valid exercise of Parliament's criminal law power.
The Appeal Court also confirmed that the Minister's decision
not to compensate the appellant could be the subject of a separate
action.
NOVA SCOTIA COURT ORDERS THE GOVERNMENT TO IMPLEMENT THE ESA
On May 29, 2020, the Nova Scotia Supreme Court (N.S. Supreme
Court) allowed a judicial review brought by an individual and
several groups of naturalists, supported by the intervenor East
Coast Environmental Law Association, of the failure of the
provincial Minister of Lands and Forestry (Minister) to implement
the habitat protections under the Nova Scotia Endangered
Species Act (ESA).
The ESA requires the Minister to appoint recovery teams for species
which are listed as endangered or threatened, and to prepare a
recovery plan within statutory deadlines. Among other things,
recovery plans must identify the habitat of the species and areas
to be considered for designation as core habitat. Designation as
core habitat can result in regulations providing protection for the
habitat, or orders from the Minister regarding activities impacting
it. The government must prepare management plans for species listed
as vulnerable.
The applicants alleged that the government had failed to implement
the recovery and management planning and core habitat
identification for six representative species: mainland moose,
ram's-head lady slipper, Canada warbler, black ash, wood turtle
and eastern wood pewee. The evidence before the N.S. Supreme Court
demonstrated the planning processes were in various stages of
implementation, although certain aspects had occurred only after
the judicial review application was filed.
The N.S. Supreme Court found that the directory nature of the term
"shall" used in the ESA did not mean the Minster had
discretion not to comply with his duties to form the recovery teams
and prepare the requisite plans. The Court also relied upon the
precautionary principle, describing it as a legislative tool that
prevents government from pointing to imperfect data as an excuse
for failing to implement a statutory duty. Finding that the
Minister exhibited a "chronic and systematic failure" to
implement actions required to be taken under the ESA, the Court
allowed the judicial review. The Court also agreed to issue orders
to the Minister to ensure that the duties would be carried out, but
declined to set deadlines or to order court supervision as had been
requested by the applicants.
IMPLICATIONS
Both courts used very strong language in reaching their
respective decisions, such as the Appeal Court's use of the
term "moral obligation" in describing the duty to prevent
the disappearance of wildlife species. There is no question that
courts are prepared to hold the federal and provincial
governments' feet to the fire if they fail to implement the
various laws regulating activities impacting such species, and to
interpret the laws generously so as to ensure they remain valid.
Litigants can expect this trend will continue. Despite the
differences in statutory schemes, courts are consistently giving
these regimes a broad and liberal interpretation to ensure
effective implementation.
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