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
"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
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