The Federal Court declared in a
decision released February 14, 2014 that two federal
departments acted unlawfully in failing to meet statutory deadlines
for the release of recovery strategies for four species-at-risk.
Ecojustice brought the lawsuit on behalf of five environmental
groups concerned that industrial development in British Columbia
threatens habitat critical to the species survival. The Court found
that the delays are "just the tip of the iceberg",
indicating "an enormous systemic problem" within the
relevant departments. Government witnesses acknowledged that they
are behind schedule on developing recovery strategies for another
167 species-at-risk. All four species could potentially be
adversely affected by the proposed Northern Gateway pipeline and
resulting tanker traffic.
The Court determined that the departments had not complied with
statutory timelines for the preparation and publication of recovery
strategies as set out in the federal Species at Risk Act
(SARA). The Minister of Fisheries and Oceans missed
deadlines for strategies to protect the Nechako River population of
white sturgeon and the North Pacific population of humpback whale.
The Minister of the Environment missed deadlines for the marbled
murrelet (a small Pacific seabird) and the southern mountain
population of woodland caribou. The Government's lawyers argued
that the lengthy delays could be ascribed to
preparing new policies and administrative structures
"organizational capacity issues", including staff
scientific challenges in identifying critical habitat for each
incorporating evolving case law on endangered species into
However, they denied that the recovery strategies had been
intentionally delayed to facilitate industrial development.
Requirements Under SARA
The Minister of the Environment or the Minister of Fisheries and
Oceans (in the case of aquatic species) must, under section 37 of
SARA, prepare a proposed recovery strategy for each
species identified as being endangered, threatened or extirpated.
Recovery strategies must address the threats to the survival of the
species, including any loss of critical habitat. The strategies
must also be published within one to four years, depending on the
status of the species and when it was listed. A final recovery
strategy must be published shortly thereafter.
The Court concluded:
"It is simply not acceptable for
the responsible Ministers to continue to miss the mandatory
deadlines that have been established by Parliament. In the
circumstances of these cases, it is therefore both necessary and
appropriate to grant the applicants the declaratory relief that
they are seeking, both as an expression of judicial disapproval of
the current situation and to encourage future compliance with the
statute by the competent ministers."
In response to the lawsuit, the federal government issued
proposed strategies for the white sturgeon, humpback whale and
murrelet just before the hearing was to commence. However, the
strategies came years after they were originally due. The proposed
strategy for the woodland caribou was posted shortly after the
hearing concluded in January 2014, six-and-a-half years late. The
Court will oversee the process to ensure the final recovery
strategies are produced in a timely fashion.
Charles (Chuck) J. Birchall, B.A. (Hons.), LL.B.,
LL.M., has over 23 years of legal experience devoted exclusively to
environmental law. Chuck provides advice on environmental
assessment and compliance, energy law and Aboriginal consultation
and economic development. Chuck has particular experience advising
on environmental assessment issues raised by mining, oil and gas,
energy and infrastructure projects.
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.
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