Copyright 2009, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Environmental Law, July 2009
On July 9, 2009, the Federal Court issued its first substantive decision interpreting the Species at Risk Act (SARA). The decision, hailed as a victory for the environmental non-governmental organizations (ENGOs) that brought the application, and for the species they are interested in protecting, may prove to be problematic for the government, and for those private property owners or entities operating in areas with habitat for species listed as endangered or threatened in SARA.
The case revolved around a recovery strategy for the Sage Grouse, a prairie bird which is considered by the federal and provincial governments to be endangered. SARA requires the federal Minister of the Environment to develop recovery strategies for all endangered and threatened species. The recovery strategy must identify critical habitat "to the extent possible". The significance of the identification of the critical habitat is that once critical habitat is so identified, SARA also requires the government to take steps to protect it.
At issue in the case was the question of whether the Minister complied with the Act's requirement that recovery strategies include identification of critical habitat. The recovery strategy at issue, which was registered in 2008, did not identify critical habitat, but set out a schedule of studies for future identification. Various ENGOs brought an application for judicial review, on the basis that the government was aware of the location of certain critical habitat, and consequently should have included it in the recovery strategy.
The Court concluded that there had been no error of law by the Minister of the Environment, but nonetheless allowed the application on the basis that the government was aware of the existence of critical habitat and therefore should have identified it. The decision turned on the Court's interpretation of certain statements made in the recovery strategy regarding known habitat, which, it concluded, meant that the Minister was aware of the existence of critical habitat. Specifically, the Court said that the government's statement in the Executive Summary of the strategy, that one of its goals was to protect and manage certain known habitat features, was effectively a statement that those features were "essential" to the species, and therefore met the definition of critical habitat, i.e., habitat "necessary to the survival and recovery of the species". In essence, the Court took a precautionary approach, and held that in the absence of "best available information", the government should consider all the known habitat to be "critical", at least until there is further information suggesting it is not. The Court has not issued a decision on the appropriate remedy, but has asked the parties for further submissions on what should be done about the defective recovery strategy.
There are real questions as to whether the Court's interpretation of the meaning of certain statements in the recovery strategy was supported by the evidence before it. However, this apparent defect in the judgment is not the most serious aspect of the decision. The Court reached its conclusion that the language in the recovery strategy satisfied the definition of critical habitat, without conducting any legal analysis of the definition itself. It is unfortunate that the Court did not take this opportunity to review the statutory language, as the difference between "habitat" and "critical habitat" in SARA has caused great confusion in the community of regulators and scientists charged with identifying critical habitat in recovery strategies. The decision does nothing to clear up this confusion and, indeed, arguably blurs the difference between habitat and critical habitat even further.
Given the lack of discussion by the Court of the meaning of "critical habitat" in SARA, it is difficult to predict how much weight future courts would put on this decision; however, if the decision is not appealed, or is upheld on appeal, the Court's conclusions on what constitutes critical habitat may prove to be problematic, as it may have a significant impact on the many recovery strategies currently under development. If the government concludes from the decision that whenever its scientists recommend that known habitat should be given protection or even special management, that habitat meets the definition of "critical habitat", then there is a very real prospect that many of the recovery strategies currently under development will identify all known habitat as "critical" even though the scientific justification for such designation may be scant. For some of these strategies, this could result in vast areas of Canada being identified as critical habitat and subject to mandatory protections under SARA, which could lead to an unwieldy and unworkable situation.
The identification of the critical habitat of the Sage Grouse which will likely result from this decision, has the potential to impact the activities of resource users and agricultural operations in the prairies. The identification of critical habitat in recovery strategies for many others of the species listed as endangered or threatened in SARA has the potential to significantly impinge upon private property owners' and resource users' ability to carry on their business on the land base across the country.
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