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.

About Fraser Milner Casgrain LLP (FMC)

FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
4 Nov 2016, Seminar, Toronto, Canada

Please join us for a complimentary half-day seminar on the following topics:

  • "When “actively employed” is not enough: Employee bonus update", presented by Matthew Curtis and Chelsea Rasmussen
  • "The top 10 labour arbitration cases of the past year", presented by
18 Nov 2016, Seminar, Vancouver, Canada

Ten days following the election, join us for a discussion with Gary Doer, former Canadian Ambassador to the US, and Gordon Giffin, US Ambassador to Canada under Bill Clinton, to discuss how the new President and Congressional makeup will shape US-Canada relations for years to come.

25 Nov 2016, Seminar, Toronto, Canada

On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.