Copyright 2010, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Environmental Law, December 2010
A recent decision of the Federal Court found that a Protection Statement and a Protection Order for the Northern and Southern Resident populations of the Killer Whale, issued under the federal Species at Risk Act (SARA), are unlawful. The court confirmed that SARA creates stricter protections for the critical habitat of aquatic species than other federal legislation such as the Fisheries Act. This ruling adds to the growing body of law under SARA in which the courts have been critical of the manner in which the government, and in particular the Department of Fisheries and Oceans (the DFO), has been implementing SARA. It also raises the broader thorny issue of how areas with critical habitat can be managed without dramatically impacting economic activity.
Background
SARA requires the federal government to create recovery strategies for species listed as "threatened" or "endangered". These strategies must, where possible, identify critical habitat. In 2008 and 2009, the Federal Court ruled that critical habitat identification must include both the geophysical (i.e., spatial) delineation, as well as the attributes which make the habitat critical. For aquatic species, once critical habitat is identified in a registered recovery strategy, SARA requires the government to take one of two actions:
- issue an order that the prohibitions in SARA are applicable to the critical habitat (called a Protection Order); or
- issue a statement that the critical habitat is already protected under other acts of Parliament or under a Conservation Agreement (called a Protection Statement).
If a Protection Order is issued, there is a prohibition on destruction of the critical habitat under section 58 of SARA. Conversely, if a Protection Statement is issued, then there are no specific prohibitions in SARA that apply to the critical habitat.
SARA contains some provisions for issuing permits to destroy critical habitat, but they are tightly prescribed, including that:
- the harm be incidental to the permitted activity;
- all reasonable alternatives have been considered and the best solution has been adopted;
- all feasible measures are taken to mitigate the impacts; and
- the activity will not jeopardize the survival or recovery of the species.
SARA permits are also limited to a maximum of five years, making them particularly problematic for long-term operations.
The Killer Whale Actions
The recent decision arises from a challenge by a group of environmental non-governmental organizations (ENGOs) regarding the protection of the critical habitats of the Killer Whales. One of these species is listed as "endangered" under SARA, and the other is listed as "threatened". In 2008, the DFO issued a recovery strategy for the two populations which identified areas of critical habitat off the coast of British Columbia, and three principal critical attributes of the habitat: prey (i.e., salmon) availability, unpolluted water and a quiet environment.
In September 2008, the Minister of Fisheries and Oceans issued a Protection Statement, stating that the Killer Whales' critical habitat is already protected under the Fisheries Act and the Oceans Act, as well as a number of federal policies and provincial laws. Thus, the prohibitions in SARA against destroying the critical habitat were not applied. The Protection Statement led to the first judicial review application by the ENGOs. Prior to the judicial review being heard, the federal government replaced the Protection Statement with a Protection Order, which applied the SARA prohibition on destroying the critical habitat, described in the Order by the geophysical boundaries identified in the recovery strategy. The ENGOs then applied for judicial review of the Protection Order. The two applications were consolidated and, on December 7, 2010, the court issued its decision on both.
The Protection Statement
The key part of the decision is the court's discussion of the protections afforded critical habitat under SARA and the ability of the federal government to rely on other instruments to provide that protection. The court confirmed that any instrument relied upon in a Protection Statement must be legally enforceable and mandatory, and must be federal. A Protection Statement cannot rely on policy, guidelines or other similar instruments (unless they have the force of law, which DFO policies do not) and cannot rely on provincial laws.
The court also confirmed that the protection provided by the other instruments must be equivalent to the protections under SARA, and that an analysis of that equivalency must include consideration of what the relevant legislation allows in terms of permitting harm to the habitat. This means that any instrument to be relied on instead of SARA, must prohibit the destruction of the critical habitat and must not grant discretion to the government to allow for the destruction of that habitat, unless that discretion is limited in the same manner as SARA's permitting provisions.
The court specifically reviewed section 35 of the Fisheries Act (habitat protection) and held that it cannot act as a substitute for the protection of critical habitat under SARA, because the Minister has unlimited discretion to issue authorizations to destroy the habitat. Similarly, the court held that section 36 of the Fisheries Act (deposits of deleterious substances) does not provide equivalent protection, as the federal cabinet has the ability to issue regulations allowing substances to be deposited and there are no statutory restrictions on what can be allowed. The court did suggest that if the Fisheries Act, or a regulation under it, established criteria for issuing authorizations for critical habitat which had conditions equivalent to those in SARA, then the Fisheries Act could be potentially relied upon in future Protection Statements.
With one exception, this decision would appear to make the Protection Statement provisions of SARA of little use to the federal government for managing the critical habitat of aquatic species, given that there is currently no other federal law which protects aquatic habitat to the extent set out in SARA.
The one exception for avoiding the issuance of a Protection Order is reliance on a Conservation Agreement under SARA. However, the decision makes it clear that not any Conservation Agreement can be relied upon to establish equivalent protection. Rather, the court held that only an agreement that protects critical habitat and limits activities impacting the habitat to the same standard as SARA can be used to support a Protection Statement. Nonetheless, a Conservation Agreement remains a tool to be given serious consideration if there are activities to be carried out which potentially impact critical habitat.
The Protection Order
Another key aspect of the decision is the court's discussion of the legality of the Protection Order. The court confirmed that the prohibitions against destroying critical habitat in SARA are not limited to just the geophysical aspects of the habitat. SARA also protects the individual attributes that are identified in the recovery strategy, which, in this case, meant the water quality, the noise levels and the availability of prey.
One question the court did not address is how the protection of the various attributes of the critical habitat are to be applied. While impacts of certain activities on attributes of the habitat may be readily understood and managed, as they now are under section 35 of the Fisheries Act, others pose much more complex problems. For example, in the case of the Killer Whale, how will the government enforce the prohibition on destroying the attribute which requires that prey be available in the critical habitat area, and against whom will it be enforced?
Implications to the DFO
There are several aspects of this decision that are likely to impact how the DFO is managing critical habitat that has been identified in a recovery strategy. First, the DFO will need to review any Protection Statements already issued for aquatic species' critical habitat, and consider whether there is a need to revise them, or replace them with Protection Orders. Operators and property owners whose activities impact such habitat, should be aware that if Protection Orders are issued, the prohibitions in SARA against destruction of the attributes of the habitat will be applicable to their operations, and an existing authorization under the Fisheries Act will not protect them.
Second, for those recovery strategies registered in the future, the DFO will need to consider what mechanisms will be used to protect the critical habitat. In addition to Protection Orders, consideration should be given to the use of Conservation Agreements, which may be a more effective manner in which to manage the critical habitat in co-operation with impacted parties. Consideration should also be given as to whether an amendment to the Fisheries Act or regulations setting out conditions for section 35 authorizations impacting SARA-registered critical habitat are needed.
Application to Other Species
SARA's prohibitions do not apply to all critical habitat across Canada unless the habitat is on federal land. For species not on federal land, SARA's prohibition on destroying critical habitat applies only to migratory birds habitat (under specific circumstances set out in SARA) and to aquatic species that are subject to Protection Orders. However, the federal government can order the prohibitions to be extended to other species' critical habitat. Under SARA, if a federal minister is of the view that a provincial or territorial government is not "effectively protecting" a species' critical habitat, he or she must recommend the federal cabinet extend SARA's prohibitions to that habitat. To date, this power has not been used nor has it been tested by the courts.
While it is not yet clear how the federal government (or a court) would define effective protection, it is possible that the test established in this recent decision for "equivalent protection" could be applied to the question of whether a species' critical habitat is being "effectively protected" by a province. In such case, the question then facing the federal government would be whether a province is protecting critical habitat in a manner equivalent to SARA. Given that few provincial or territorial laws protecting endangered species habitat are currently likely to meet this test, this decision may enhance the potential for the broader application of SARA's strict prohibitions across the country to species, such as the boreal caribou, which have been historically regulated by the provinces.
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