Canada: Feds Must Disclose: Will They Save The Endangered Sage Grouse?

Last Updated: August 14 2013
Article by Dianne Saxe

As we wrote earlier, sage grouse are on the brink of extinction in Canada due to oil sands development. The federal Minister of the Environment has refused to disclose if they will do anything about it. Last week's Federal Court of Appeal decision will require the Minister, now the Honourable Leona Aglukkaq, to tell the public whether they will. The case also shows that the public has a right to know a wide variety of government deliberations, short of those actually at the Cabinet table.

Under s. 80(2) of the Species at Risk Act, the Minister must make a recommendation to Cabinet that an emergency order is required for the protection of a listed wildlife species "if he or she is of the opinion that the species faces imminent threats to its survival or recovery." On behalf of a number of western conservation groups. Ecojustice brought an application requesting an order of mandamus in relation to the Minister's failure to recommend an emergency order and to amend the sage grouse recovery strategy, as well as for judicial review of the Minister's refusal to recommend an emergency order, to identify further critical habitat, and to amend the recovery strategy accordingly.

In response to their request for disclosure, the Minister provided a certificate, signed by the Clerk of the Privy Council, asserting that several requested documents were protected by Cabinet confidence under sections 39(2)(d) and (e) of the Canada Evidence Act. These provisions allow the Clerk of the Privy Council to assert privilege over records concerning communications between ministers relating to government decisions and ministerial briefs that are brought before, or proposed to be brought before, Council.

The Federal Court of Appeal rejected the Minister's argument that "because Cabinet deliberations are confidential, any information which is associated with such deliberation is, by that fact confidential". Rather, the Court concluded:

[47]           Section 80 leaves open the possibility that the Minister may not, on the evidence before him, be satisfied that a species faces an imminent threat to its survival or recovery. In that case, the Minister can decide that no recommendation for an emergency order should be made to Cabinet. As a result, no recommendation will be made to cabinet. In that case, the Minister's decision not to make a recommendation does not come within the terms of section 39 of the Canada Evidence Act as a matter "that [is] brought before, or [is] proposed to be brought before, Council", or otherwise. As pointed out in Babcock, one of the criteria for the issuance of a valid certificate pursuant to section 39 is that "the information must fall within the categories described in section 39(2)": see Babcock, at paragraph 24.

[48]           If the position asserted by the respondents is correct, it would have the effect of sheltering from review every refusal to make a recommendation for an emergency order. This cannot be so. The Minister's discretion to decline to make a recommendation to Cabinet must be exercised within the legal framework provided by the legislation. The authority for that proposition is at least as old as the seminal case of Roncarelli v. Duplessis, [1959] S.C.R. 121, at page 140:

In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. "Discretion" necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.

[49]           The Minister's decision to decline to make a recommendation is therefore reviewable. The standard of review is reasonableness: see Halifax (Municipality) v. Canada (Public Works and Government Services), 2012 SCC 29, [2012] 2 S.C.R. 108, at paragraph 43.

[50]           Returning to the issue of the claim of cabinet confidence made in the Certification and Objection, if the Minister has declined to make a recommendation to cabinet under section 80 of the Act, section 39 of the Canada Evidence Act does not apply. Nor does section 39 apply if the Minister has not yet decided whether or not to make such a recommendation under section 80. In the event the Minister has made a recommendation to cabinet under section 80, section 39 of the Canada Evidence Act may possibly apply to that recommendation, but in this case, no certificate has been issued under that section with respect to such a recommendation. In summary, neither the Certification and Objection nor the Clerk's Certificate disclose a legal basis for refusing to disclose whether or not a decision has been made with respect to a recommendation for an emergency order and the nature of the decision.

[51]           That being the case, this matter should be returned to the Case Management Judge or Prothonotary on the understanding that the Minister will communicate his position unequivocally and that the appellants will tailor their Notice of Application accordingly. It should then be possible to move this matter forward without further delay.

The new Minister is now left in the unenviable position of either:

  1. Disclosing that she determined that the grouse do not face imminent threats to their survival or recovery (which seems implausible, given its dramatic decline and imminent extinction);
  2. Disclosing that no decision at all has been made (almost as uncomfortable, given the all too easy assumption that perhaps they hoped there would be no grouse to save by the time they got around to the decision); or
  3. Making a recommendation to Cabinet that an emergency order is required. (Putting Cabinet in the hot seat on the question – will it allow the extinction of a species to allow oil and gas development to proceed?)

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 Mondaq.com.

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

Authors
Dianne Saxe
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions