Canada: The Ongoing Saga Of The Sage Grouse

The sage grouse is an endangered species. It is estimated that there are currently only 100 greater sage-grouse remaining in Canada. Environmental groups point towards habitat loss  and degradation as a result of agricultural and industrial uses of land as the leading cause of endangerment. Although the sage-grouse historically inhabited many areas in western Canada, its populations are now confined to southeastern Alberta and southwestern Saskatchewan.

The federal Government has recognized the sage-grouse as an endangered species pursuant to the Species at Risk Act ("SARA"). When a species is designated federally as endangered, the Minister of Environment is required to prepare a recovery strategy for that species pursuant to SARA. The Government of Canada issued a federal Recovery Strategy pursuant to SARA in respect of the sage-grouse on January 14, 2008.

In 2009,1 several environmental groups (the "Applicants"), applied to the Federal Court of Canada to review the Recovery Strategy for the sage-grouse. The Applicants cited an alleged breach by the Minister of Environment to identify as much critical habitat of the sage-grouse as possible based on the best available information, which is required by SARA as read together with the precautionary principle. "Critical habitat" is defined under SARA as "the habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species' critical habitat in the recovery strategy or in an action plan for the species". Instead, the Recovery Strategy included a schedule of activities that were to be completed in order to identify a critical habitat, rather than identifying the habitat itself.

The Court reviewed the issue of whether as much critical habitat as possible was identified as a question of fact on the standard of reasonableness. While the Court found that it was reasonable to conclude that no critical winter habitat of the sage-grouse could be identified given inadequate available information regarding such seasonable habitat, it was unreasonable to not have included the sage-grouse breeding habitat, also known as "leks", as there was already sufficient available information regarding that critical habitat. There was evidence that the Minister had conceded that leks were necessary for the survival or recovery of the sage-grouse population, and the Government of Alberta's procedure of labeling and naming leks locations indicated that some leks locations were identifiable and should have been so identified in the Recovery Strategy. Ultimately, the Court struck the portion of the Recovery Strategy related to critical habitat and directed that the Minister redraft that portion of the Recovery Strategy.

SARA permits Cabinet to make an Emergency Protection Order after the Minister has determined that a species faces imminent threats to its survival or recovery and recommends that such an order be issued after consultation with every other competent minister. After several requests by the Applicants for the Minister of Environment to issue an Emergency Protection Order in respect of the sage-grouse, the Applicants sought to judicially review the decision of the Minister regarding the issuance of an emergency protection order, while alternatively seeking to compel the Minister to make such a decision if it had not already been made. Lastly, the Applicants sought an order for production of documents related to the decision of the Minister regarding the issuance of an emergency protection order. Ultimately, the issue of production of documents resulted in an appeal2 wherein the Federal Court of Appeal determined that the Minister and the federal Government could not claim Cabinet privilege pursuant to the Canada Evidence Act, over whether a decision had been made by the Minister. Only when the Applicants were informed of such decision could it be determined whether the information that was brought before the Cabinet was privileged. Provision of such information would enable the Applicants to amend their application accordingly.

In December 2013, following the appeal, the federal Government issued an Emergency Protection Order  for the sage-grouse.3 The Emergency Protection Order applies to only federal and provincial Crown lands. This Order is currently being challenged by participants in the oil and gas industry, who are seeking to quash the Order or suspend the effect of the Order for six months while the Minister consults with them.

Interested parties, whether they are environmental NGOs or industry players, will continue to play an active role in challenging the federal Government to tailor protection of endangered species under SARA. This case has demonstrated that SARA is a tool by which the federal Government can be called upon to address the protection of endangered species. Such protection will continue to play an active role in shaping development in various regions as it becomes recognized that, even longstanding uses of lands, such as agricultural uses, are having long-term effects on species populations in Canada. We will continue to monitor the latest challenge and report on it.

Footnotes

1 2009 FC 710.

2 2013 FCA 190

3 SOR/2013-202

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