When it comes to protecting species at risk, and fulfilling mandatory obligations under the Species at Risk Act (SARA), it seems the Federal Government must be goaded into action by litigation brought by conservation groups. Two recent cases highlight government foot-dragging in developing plans to protect species that are at urgent risk, due in part to a lack of “organizational capacity” (i.e. staff cuts). The government will rarely disclose whether a protection plan is even in the works.
The Federal Government did, however, find the time and resources to swiftly downgrade the status of the North Pacific Humpback Whale from “threatened” to “special concern” at the end of April based on a recommendation from COSEWIC (Committee on the Status of Endangered Species in Canada).
So how does our government protect species at risk in Canada? Where a species is on the brink of extinction, protective action is as slow as possible. But where a species has recovered somewhat, its protection is quickly stripped away.
Recent cases before the Federal Courts
On behalf of five ENGO’s (environmental non-governmental organizations), Ecojustice challenged the admitted failure of the Minister of Fisheries and Oceans and the Minister of the Environment to prepare recovery strategies for four species until many years after the statutory deadlines: the White Sturgeon, Nechako River population; the Humpback Whale, North Pacific population; the Marbled Murrelet; and the Woodland Caribou, Southern Mountain population.
The Ministers admitted that SARA did not give them the discretion to extend the time for the performance of the duties they were legally required to fulfil, and that they had failed to comply with the Act. They attempted to excuse their conduct on the basis that they needed more time to develop policies, standards administrative structure and consultation processes, and acquire scientific expertise after the enactment of SARA. (Despite the fact that SARA was enacted almost twelve years ago, after extensive consultation and debate). They also claimed that they had limited organizational capacity and that they had to manage competing legal duties. Lastly, they blamed “scientific challenges” particularly in identifying critical habitat and in responding to changes in the law after various decisions of the Federal Court.
Justice Mactavish of the Federal Court declared that the Ministers’ failure was “unlawful”, stating that:
 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.
The systemic problems revealed in this case are of grave concern. As Justice Mactavish noted:
 It is, moreover, apparent that the delays encountered in these four cases are just the tip of the iceberg. There is clearly an enormous systemic problem within the relevant Ministries, given the respondents’ acknowledgment that there remain some 167 species at risk for which recovery strategies have not yet been developed. In this regard it is noteworthy that the Ministers acknowledge that they have not complied with the statutory timelines for the preparation and posting of proposed recovery strategies for any of the other 167 species.
 Indeed, it is reasonable to assume that the acceleration of progress on these four cases in response to the commencement of this litigation could well have caused further delays in the preparation of recovery strategies for other species
Justice Mactavish retained her jurisdiction over the matter and will hear the case again if the Ministers fail to meet their duties with regard to these four species. (Although the point may be moot with regard to the humpback whale).
The Greater Sage-grouse is on the brink of extinction in Canada, largely because of its conflicts with human landuse, especially oil and gas development. In Alberta and Saskatchewan, its numbers declined by 88% between 1988 and 2006. The last naturally occurring sage-grouse in BC was shot in 1918. Ecojustice reports that if the current trajectory of decline continues, Alberta’s sage-grouse population could be extirpated as early as next year. (Then the federal government will have the perfect excuse to not bother protecting it there.) Saskatchewan’s population could disappear within the next ten years.
Under SARA, 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 Greater 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.
The Minister refused to disclose whether she had, or had not, made any recommendation to Cabinet, claiming that the requested documents were protected by Cabinet privilege. Justice Pelletier, of the Federal Court of Appeal, rejected this argument. He pointed out that if the Minister decided that no emergency order was necessary, nothing would be before Cabinet and there would be no basis for a claim of Cabinet privilege. To find otherwise would have the effect of sheltering from review every refusal to issue an emergency order. This could not be the case, he found, because the Minister’s discretion to make a recommendation to Cabinet must be exercised within the legal framework of the legislation, citing the seminal case of Roncarelli v. Duplessis:
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.
Minister of the Environment Leona Aglukkaq subsequently introduced an Emergency Protection Order. The Order may not help the Sage Grouse, though, because an application for judicial review of the Order has been filed by the City of Medicine Hat and LGX Oil & Gas Inc.. Pending the resolution of this case, which could take years, the government is not doing much to implement the Order. The application is scheduled to be heard in Calgary this June.
Status of the North Pacific Humpback Whale
Under SARA, the Minister of Fisheries and Oceans was required to post a proposed recovery strategy for the North Pacific Humpback Whale by 2009. Litigation prompted the Minister to develop the strategy and it was finalized more than four years after the statutory deadline. However, in 2011, COSEWIC recommended that the North Pacific Humpback Whale could be moved to a lower risk category – from threatened to special concern. The Federal government made this change in April 2014, just six months after the recovery strategy was finalized.
According to COSEWIC, although the North Pacific Humpback Whale population is no longer considered to the “threatened”, it “continues to face several threats including noise disturbance, habitat degradation (especially on the breeding grounds), entanglement in fishing gear or debris, and ship strikes.”
What the future holds for the Humpback Whale is uncertain. If the Northern Gateway Pipeline is approved, and it adversely impacts the population (which seems likely given the overlap of the tanker route and its breeding grounds), how long will it take to put the protections it requires back in place?
The precautionary principle and SARA
The preamble to SARA states “the Government of Canada is committed to conserving biological diversity and to the principle that, if there are threats of serious or irreversible damage to a wildlife species, cost-effective measures to prevent the reduction or loss of the species should not be postponed for a lack of full scientific certainty”.
If only it were true.