Canada: New Federal Court Of Appeal Decision To Protect Killer Whale Habitats

Last Updated: March 26 2012

On February 9, 2012, the Federal Court of Appeal (the "FCA") issued its decision in Canada (Fisheries and Oceans) v. David Suzuki Foundation, 2012 FCA 40, dismissing the appeal of the Minister of Fisheries and Oceans (the "Minister") and holding that ministerial discretion does not "legally protect" critical habitat under section 58 of the Species at Risk Act S.C. 2002 c. 29 ("SARA"). The FCA further held that it was unlawful for the Minister to have cited discretionary provisions of the Fisheries Act R.S.C., 1985, c. F‐14, in a protection statement concerning the critical habitat of the Northeast and Southern populations of killer whales.

Background on SARA

SARA's objective is to protect vulnerable species and to ensure that they recover to healthy population levels. To achieve this, the government is required to protect the identified critical habitat of species listed as endangered and threatened. Section 57 of SARA provides that all critical habitats identified in a recovery strategy must be protected within 180 days after the recovery plan is included in the public registry. Section 58 states that this protection must be achieved through legally enforceable measures, and Section 58 provides in part as follows:

58. (1) Subject to this section, no person shall destroy any part of the critical habitat of any listed endangered species or of any listed threatened species — or of any listed extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada — if

(a) the critical habitat is on federal land, in the exclusive economic zone of Canada or on the continental shelf of Canada;

(b) the listed species is an aquatic species; or

(c) the listed species is a species of migratory birds protected by the Migratory Birds Convention Act, 1994.


(4) ... [S]ubsection (1) applies in respect of the critical habitat or portion of the critical habitat, as the case may be, specified in an order made by the competent minister.

(5) Within 180 days after the recovery strategy or action plan that identified the critical habitat is included in the public registry, the competent minister must, after consultation with every other competent minister, with respect to all of the critical habitat or any portion of the critical habitat that is not in a place referred to in subsection (2),

(a) make the order referred to in subsection (4) if the critical habitat or any portion of the critical habitat is not legally protected by provisions in, or measures under, this or any other Act of Parliament, including agreements under section 11; or

(b) if the competent minister does not make the order, he or she must include in the public registry a statement setting out how the critical habitat or portions of it, as the case may be, are legally protected.

SARA lists Southern whales as an endangered species and Northeastern whales as a threatened species. However, the Minister did not make a protection order under SARA with respect to these whale species. Rather, he included in the public registry a statement (the "Killer Whales Protection Statement") setting out how the critical habitat of the concerned killer whale populations was already legally protected by section 36 of the Fisheries Act. Section 36, however, does not include the protection of critical habitats. Instead, it prohibits the deposit of deleterious substances in water frequented by fish, unless such deposit is authorized by regulation. The Killer Whales Protection Statement therefore restricted the concept of critical habitat, for the purposes of SARA, to geophysical attributes only.

Application for Judicial Review

Ecojustice initiated a judicial review application challenging the lawfulness of the Killer Whale Protection Statement in October 2008. Before the judicial review was heard, the Minister reversed himself by issuing a protection order jointly with the Minister of the Environment under subsections 58(1) and (4) of SARA. This order was registered as the Killer Whales Protection Order. Yet Ecojustice challenged the order on the basis that it did not account for the availability of prey, environmental contaminants and psychical and acoustic disturbances.

In 2010, the Honourable Mr. Justice Russell of the Federal Court held that the Department of Fisheries and Oceans (the "DFO") had failed to legally protect critical habitats. Justice Russell reviewed the scope of the critical habitat and agreed with Ecojustice that the Killer Whales Protection Order was incomplete. Justice Russell ruled that a competent Minister may not resort to another federal statute as a substitute for a protection order unless that statute provides an equal level of legal protection. He went on to make 11 declarations of law, including a declaration that "Ministerial discretion does not legally protect critical habitat within the meaning of section 58 of SARA, and that it was unlawful for the Minister to have cited discretionary provisions of the Fisheries Act in the [Killer Whales] Protection Statement." The Minister appealed this declaration.

The Appeal

The two issues raised on appeal were:

1. What is the standard of review for the DFO's decision to rely on ministerial discretion to provide legal protection in the Killer Whales Protection Statement; and

2. Did the Minister err by relying on the provisions of the Fisheries Act in making the Killer Whales Protection Statement.

Though the issues were moot because the Minister had reversed the Killer Whales Protection Statement, the FCA nonetheless decided to hear the appeal because the issues were of public importance and their resolution was in the public interest.

(i) Standard of Review

The Minister submitted that because Parliament had entrusted him with the responsibility of managing regulatory systems under SARA, by consequence his interpretation of section 58 should be given deference. The FCA disagreed. Writing for the court, the Honourable Mr. Justice Mainville held that "the Minister must take a view on what the statute means in order to act. But this is not the same as having a power delegated by Parliament to decide questions of law". The FCA found that the Minister's interpretation must be reviewed on a standard of correctness.

(ii) Interpretation of SARA

The Minister submitted that there should be some flexibility as to the modalities of the compulsory protection required by section 58 of SARA. The Court disagreed. The Court held that, "when Parliament adopted section 58 of SARA, its intent was to provide for compulsory and non‐discretionary legal protection from destruction for the identified critical habitat of listed endangered or threatened aquatic species". In this case, the Minister's reliance on section 36 of the Fisheries Act was not sufficient for the purposes of SARA. The Court held that "there is not evidence in the record before the Court showing whether the pollution controls set out in these [section 36] regulations protect from destruction the critical habitat of the concerned killer whales".

But the appeal was only won in part, as the FCA did note that there are circumstances where the Minister may rely on provisions of the Fisheries Act for the purposes of protecting aquatic species under section 58 of SARA. The Court held that "in a given case, the combined operation of section 36 of the Fisheries Act...may afford a particular endangered or threatened species the legal protection mandated by section 58 of SARA".


This decision confirms that the standard Ministerial discretion is correctness. The decision may increase the likelihood that groups like Ecojustice will be successful in challenging the Minister's discretion for the protection of endangered and threatened species. However, in terms of section 58 of SARA, this decision appears to weaken Justice Russell's decision with respect to the protection of endangered and threatened aquatic species. The Minister to may be able to render less effect of section 58 of SARA by allowing for reliance on the less stringent provisions of the Fisheries Act in certain circumstances. The precise circumstances in which the Fisheries Act will be sufficient remains to be seen.

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