Case Comment: Kebaowek First Nation et al. v Canada (Attorney General), 2025 FC 472
A recent Federal Court decision highlights the ever-present balancing act between conservation goals of our species at risk legislation and the reality of socioeconomic priorities, particularly when it comes to permitting industrial activity near endangered species. While the ruling delivered a partial win for species protection, it also clarified a provision of the Act whose very existence suggests that there are ways to undermine the conservation efforts present throughout the rest of the statute. Specifically, this decision highlighted that so long as full consideration and reasons are provided, project proponents may weigh conservation factors alongside convenience, logistical, or economic factors and find in favor of the latter.
This is an important section to pay attention to because it is rare for a species to receive full protections under the Species at Risk Act. Delays are common and species that hold commercial value, such as the Winter Skate and Chinook Salmon, often remain off the official List of Wildlife Species at Risk due to concerns from the commercial fishing industry. Moreover, provinces don’t necessarily cooperate on neighbouring provincial lands. However, even when critical habitat is identified, a species is added to the List of Wildlife Species at Risk, and their critical habitat is located primarily on federal lands, there remain options for impacts on their habitat and thus their survival. One such option is permitting, set out in section 73 of the SARA. This blog post focuses on permitting and a federal court decision which clarified the broad nature of available permits under the Act.
Understanding Section 73 SARA Permits
73 (1) The competent minister may enter into an agreement with a person, or issue a permit to a person, authorizing the person to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals.
Purpose
(2) The agreement may be entered into, or the permit issued, only if the competent minister is of the opinion that
(a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons;
(b) the activity benefits the species or is required to enhance its chance of survival in the wild; or
(c) affecting the species is incidental to the carrying out of the activity.
Pre-conditions
(3) The agreement may be entered into, or the permit issued, only if the competent minister is of the opinion that
(a) all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
(b) all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals; and
(c) the activity will not jeopardize the survival or recovery of the species.
The Kebaowek Case and Section 73 SARA Permits
Kebaowek First Nation et al v Canada (Attorney General) is a recent federal court application for judicial review of a decision of the Minister of Environment and Climate Change Canada to issue a permit under section 73 of the SARA.[1] Below we will take a closer look at this decision and what it suggests about the opportunities for loopholes under the SARA.
In this instance, the Permit authorized Canadian Nuclear Laboratories to construct and operate a disposal facility for low-level radioactive waste near the critical habitats of three species listed under Schedule 1 of the SARA.[2] The issue before the Court was whether this decision was reasonable considering the statutory requirements under section 73 of the SARA.[3] It was brought by a group of Applicants including the Kebaowek First Nation, the Concerned Citizens of Renfrew County, the Canadian Coalition for Nuclear Responsibility and the Sierra Club of Canada.
The Applicants made three main arguments. First, that the Minister failed to demonstrate compliance with the overall mandate of the SARA to consider “all reasonable alternatives” to the project or to otherwise justify the choice they made was the best solution to protect these at-risk species. Second, they argued that the decision by the Minister disregarded contradictory evidence. Third, the Minister inadequately assessed risk to the newly listed Monarch Butterfly.[4] For their part, the Respondents maintained that the decision complied with the SARA and that none of the activities would jeopardize the recovery of any listed species; particularly as they considered all reasonable alternatives, selected the best solution, and implemented all feasible mitigation and monitoring.[5]
The Court, however, agreed in part with the applicants and declared the Minister’s decision unreasonable.[6]
The initial permit was applied for under section 73 of the SARA (the “Permit”) and authorized incidental harm of any listed species or their residences. In making this application the project proponent had to submit reports regarding site selection, environmental assessment, and project design including specific regard for the species affected by the project.[7] The project proponent also indicated that while other sites were available that would have had a lower impact on species, the site was chosen after weighing these impacts against other factors.[8] The Permit authorized the project proponent CNL to proceed with the construction and operation of the proposed facility at the Chalk River Site.[9]
Section 73 is an important section as it “carves out a tightly bounded space in which otherwise prohibited activities may be conducted, but only if the Act’s protective mandates are advanced.”[10] This demonstrates a balance inherent in the Act to “harmonize conservation with societal and economic realities.”[11] The documents under judicial review included the Permit, the Decision memo, the Public Notice, and the Science Review.[12] In considering these documents and whether the Minister’s decision was reasonable, the Court considered four main questions:[13]
- Whether the Minister unreasonably concluded that “all reasonable alternatives” had been considered under paragraph 73(3)(a) of the Act, given the Applicants’ claim that many potential site locations and mitigation measures were overlooked or inadequately assessed;
- Whether the Minister unreasonably determined that, among the shortlisted options, the one selected best reduces the impact on the species pursuant to paragraph 73(3)(a) of the Act;
- Whether the Minister acted unreasonably in determining that the permitted activities and associated mitigation strategies would not jeopardize the survival or recovery of the species expressly covered by the Permit pursuant to paragraphs 73(3)(b) and (c) of the Act, specifically in light of alleged contradictory evidence regarding unsuitable bat box temperatures, wildlife corridor risks affecting turtle predation, and alleged inconsistent treatment of residences of threatened bird species; and
- Whether the Minister’s failure to assess the Monarch Butterfly led to an unreasonable determination of the scope of the Permit.
We consider each question in turn below.
Question 1: Was the Minister’s finding regarding ‘reasonable alternative’ locations unreasonable?
The Court found that the Minister had not sufficiently justified the conclusion that they had considered all reasonable alternatives.[14] In considering alternatives, the project proponent only considered sites that were owned by the corporation. The Applicants argued that this was a self-imposed limit that failed to assess all reasonable alternatives.[15] The Respondents, on the other hand, argued that they were not obligated to “exhaustively examine every imaginable option” but instead to “select the best solution from those options that are feasible.”[16] The Court agreed with the Applicants, finding that it was the proponent’s job to consider all sites, even those that posed greater logistical challenges, if it offered reduced harm to at-risk species.[17] Administrative or logistical challenges cannot absolve the proponent from considering a site, even if they result in a later rejection.[18]
The Court did acknowledge that if the Minister had included a reasoned analysis that the other sites “offered no meaningful conservation advantage” then the decision may have withstood judicial scrutiny.[19] The text of section 73 “makes clear that ecological considerations must drive the identification of all reasonable alternatives.”[20] This part of the decision highlights that while conservation factors need to drive the initial analysis of options, multiple factors can be used to finalize a legitimate decision.
Question 2: Did the Minister improperly determine that the selected site was the ‘best solution’?
Paragraph 73(3)(a) of the SARA requires that the site chosen for the Permit must be the “best solution” among potential choices. In this case, the Court agreed with the Plaintiffs that the chosen site was not a reasonable option.[21] In fact, the Applicants pointed to two other sites included in the shortlisted alternatives that would have been better at “reducing impacts on species at risk.”[22] The Applicants argued that, at this stage of the decision making process, the SARA’s conservation mandate precludes other balancing interests.[23] They looked to the evidence before the Court to argue that the “Minister’s delegates at ECCC have consistently interpreted the ‘best solution’ as one that ‘best advances conservation of species at risk’ and thus ‘must be adopted.’”[24]
The Court agreed with the Applicants, finding that ECCC’s framework for the interpretation of SARA treats the advancement of species conservation as the paramount objective when identifying the best solution. While the Minister may deviate from this historical interpretation, if they were to do so, they would be required to provide reasons.[25] For example, if they had provided an explanation for how non-ecological factors fit into the investigation without conflicting with conservation objectives that may have been a reasonable decision.[26] However, the Court did go on to find there can be a balancing of ecological and non-ecological considerations and that the interpretation of a ‘best solution’ can have multiple reasonable meanings.[27]
In fact, the Court found parts of the text of section 73(3)(a) which suggest “deliberate flexibility” including the decision to use the word ‘reduce’ rather than a stricter term like ‘eliminate’.[28] The use of the term ‘best solution’ is also broken down and the Court suggested that a ‘solution’ in plain meaning could not mean an option that was technically or operationally undesirable, meaning that there is an opportunity to weigh socio-economic and logistical factors alongside conservation ones, although these considerations must be transparently justified.[29] This is a broad interpretation of section 73(3)(a) and rather than finding that conservation outcomes are the most important factor, the Court left the door open for a balancing of conservation and other factors and even an opportunity where those other factors win out.
The Court even went so far as to find that this was supported by the purpose of the SARA which includes both a focus on the protection and recovery of at-risk species alongside an acknowledgment that “community knowledge and interests, including socioeconomic interests, should be considered”.[30] While this may be true, the Court glossed over the fact that the focus on at-risk species is found in the body of the Act while the acknowledgment of other interests is only in the preamble. A preamble may provide broad interpretative direction for an Act but the fact that socioeconomic factors were left out of the purpose section of the SARA suggests that they were intended to be a secondary priority.
Question 3: Whether the Minister acted unreasonably in determining that the permitted activities and associated mitigation strategies would not jeopardize the survival or recovery of the species
The third question considered what the Applicants referred to as ‘contradictory evidence.’ Specifically, this concerned evidence about whether the permitted activities would jeopardize the survival or recovery of Blanding’s Turtle, Little Brown Myotis, or Northern Myotis.[31] The Applicants disagreed with the project proponent’s argument that the use of bird boxes at high or unstable temperatures would not disrupt maternity roosts or pup growth and that the newly installed wildlife corridors along roadways could lead predators to ambush and prey on the turtles.[32]
This is a technical part of the argument as it considered the details of the mitigation measures put forward by the project proponent. The Court reviewed the evidence before the Minister and found that it did not undermine the reasonableness of the Minister’s decision who would have been presumed to have reviewed all the evidence prior to making a decision.[33]
Finally, the Applicants argued “that the Minister’s treatment of the nests of the four threatened migratory bird species as “residences” under the Act is inconsistent with the statutory definitions and, therefore, unreasonable.”[34] Specifically, they argued that nests should be treated as a residence and receive the associated protections regardless of whether they are occupied.[35] However, the Court found that in making the decision to treat empty bird nests differently when occupied or vacant the Minister was using the interpretation of “habitually occupied” which the Court believed aligns with both the textual reading of the Act and the biological reality of these species.[36]
Question 4: Was the decision to exclude the new designation of the Monarch Butterfly from the Permit reasonable?
The last question before the Court was whether the exclusion of the Monarch Butterfly from the Minister’s assessment following its uplisting from species of special concern to endangered renders the scope of the Permit unreasonable.[37] In this instance, the Court did not find it was unreasonable to exclude the Monarch Butterfly during the evaluation and issuance of the Permit.
The Applicants argued that because of the uplist during the period leading up to the Minister’s decision to issue the Permit, the Minister should have addressed any potential harm to the species under the strict prohibitions under the Act.[38] The Respondents disagreed, arguing that the project’s design did not impact the Monarch or its residences in a manner that would trigger the prohibitions of the Act.[39] The Court agreed, finding that the decision not to include the Monarch in the Permit was a reasonable decision based on the Minister’s evidence.[40]
Conclusions
In his conclusion, Justice Zinn found that despite some of the evidence being reasonable, the Minister’s decision was unreasonable due to the fatal flaws “in the interpretation and application of key elements under paragraph 73(3)(a) of the Act” specifically with regard to the project proponent’s artificial restriction of its site selection.[41] Further, the Court found that the Minister did not provide any rationale for “abandoning ECCC’s prior practice of interpreting ‘best solution’ through a conservation-first lens” and that while the Act permits some flexibility between ecological and non-ecological factors, this type of flexibility requires explicit justification to meet the standard of reasonableness. In this case, the Minister was silent on these points.[42]
Questions 3 and 4 did not evoke the same type of reviewable error. However, the fact that the requirements under section 73(3)(a) were not met was sufficient to render the decision to issue the permit unreasonable.
What about Alberta?
This decision and what it says about the permitting option under the SARA will have limited impacts on species at risk in Alberta because it only applies in very limited circumstances. Specifically, a permit under section 73 is only required if section 32 of the SARA which prohibits the killing, harming, harassing, capture, or taking of an individual of a listed wildlife species or section 33 which protects the residence of those wildlife species applies.
Sections 32 and 33 apply primarily to species located on federal lands or to aquatic and migratory bird species. For them to apply more generally to species in Alberta, the Governor in Council would need to make a specific order providing that these sections apply on provincial lands and with respect to species that are not aquatic species or migratory birds. For most species at risk in Alberta, allowable activities will be subject only to provincial laws such as the Wildlife Act or the Alberta Land Stewardship Act.
THANKS FOR YOUR SUPPORT
Your support is vital for stronger environmental legislation. As Alberta’s leading environmental charity, the Environmental Law Centre has served our community for over 40 years, providing objective guidance on crucial legislative changes. Your contribution helps protect our environment for future generations.
Please support our work: Share, engage and donate to the ELC
[1] Kebaowek First Nation, Concerned Citizens of Renfrew County and Area, Canadian Coalition for Nuclear Responsibility and Sierra Club of Canada v. Canada (Attorney General) and Canadian Nuclear Laboratories, 2025 FC 472 at para 2.
[2] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 2.
[3] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 3.
[4] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 4.
[5] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 5.
[6] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 85.
[7] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 13.
[8] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 14.
[9] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 18.
[10] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 37.
[11] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 36.
[12] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 18.
[13] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 27.
[14] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 41.
[15] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 43.
[16] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 44.
[17] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 48.
[18] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 48.
[19] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 50.
[20] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 52.
[21] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 53.
[22] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 54.
[23] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 54.
[24] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 55.
[25] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 56.
[26] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 57.
[27] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 57.
[28] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 58.
[29] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 58.
[30] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 60.
[31] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 62.
[32] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 62.
[33] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 70.
[34] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 75.
[35] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 75.
[36] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 76.
[37] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 79.
[38] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 80.
[39] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 80.
[40] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at paras 81 & 84.
[41] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 85.
[42] Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472 at para 85.