25 Feb The Federal Court finds unlawful delay by the government under the Species at Risk Act
In our recent post on the Northern Gateway decision report, we mentioned an ongoing court case brought by Ecojustice on behalf of several environmental organizations. The Western Canada Wilderness Committee v Canada (Fisheries and Oceans) case concerns governmental delay in developing recovery strategies under the Species at Risk Act (SARA), including several species that are likely to be impacted by the Northern Gateway Project. In mid-February, the Federal Court issued its decision in this case.
Highlights of the Western Canada Wilderness Committee v Canada (Fisheries and Oceans) decision
Under SARA, the federal government has an obligation to prepare and publish recovery strategies for listed species at risk. The recovery strategy is a crucial step for providing protection to endangered or threatened species under SARA. This includes identification and protection of critical habitat necessary for the survival of a species. Timelines for the preparation and publication of recovery strategies are set by SARA (depending on the status of the species, up to four years from the date of listing plus a 90 day public comment and finalization period).
The federal government has consistently failed to meet the statutory requirements for the preparation and publication of recovery plans. While this case specifically considered the failure to develop recovery plans for the White Sturgeon, the Humpback Whale, the Marbled Murrelet and the Woodland Caribou in a timely fashion, these species are merely representative of the systemic problem of substantial delays [paragraph 35].
The Court determined that the federal government acted unlawfully in failing to post recovery strategies for the four species in accordance with the statutory timelines set by SARA. The Court did not find any of the federal government’s reasons for delay to be justified (time needed to develop new policies, standards, administrative structures and consultation processes with the enactment of SARA; organizational capacity issues (such as staff turnover); scientific challenges; and attempting to understand various court decision regarding SARA).
The Court recognized that the development of a recovery strategy is a complex process that raises administrative challenges and involves an evolving base of scientific knowledge. However, it noted that a recovery strategy should be “science-based, not consensus-based” [paragraph 70]. Further, the Court noted that, in accordance with the precautionary principle, the development of a recovery strategy should not be postponed for a lack of scientific certainty.The Court stated [paragraphs 101 and 102]:
To state the obvious, the Species at Risk Act was enacted because some wildlife species in Canada are at risk. As the applicants note, many are in a race against the clock as increased pressure is put on their critical habitat, and their ultimate survival may be at stake.
The timelines contained in the Act reflect the clearly articulated will of Parliament that recovery strategies be developed for species at risk in a timely fashion, recognizing that there is indeed urgency in these matters. Compliance with the statutory timelines is critical to the proper implementation of the Parliamentary scheme for the protection of species at risk.
In making its decision, the Court commented that it is “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’ acknowledgement that there remain 167 species at risk for which recovery strategies have yet been developed” [paragraph 85].
How does this impact the Northern Gateway decision report?
The Court specifically commented on the government’s failure to develop recovery strategies in time for consideration by the Northern Gateway Joint Review Panel (in response to the lawsuit, the recovery strategies were posted but too late for consideration by the Joint Review Panel). While the Court accepted that the work done in relation to the proposed recovery strategies may have assisted with the Ministries’ submission to the Joint Review Panel, it found that cannot be “equated to the level of protection that would be provided to the four species, had the recovery strategies been posted for them in a timely fashion” [paragraph 60].
It remains to be seen how this decision will affect the outcome of the Northern Gateway decision-making process. While the relevant recovery plans were posted too late to be considered by the Joint Review Panel, the final decision in this matter is yet to be made by the federal cabinet. Will the federal cabinet be required to consider the recovery strategies while looking at the Northern Gateway Joint Review Panel decision report? How will the pending applications for judicial review of the Joint Review Panel be impacted by the Federal Court’s decision in this matter? We will keep you posted on new developments in the Northern Gateway decision-making process and pending litigation.