Federal Court finds Canadian government failed to protect species at risk

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Recently, a number of environmental groups represented by Ecojustice brought a series of judicial reviews alleging that the federal government has unlawfully failed to protect four species due to delays: the Pacific Humpback Whale, Nechako White Sturgeon, Marbled Murrelet and Southern Mountain Caribou.

Without a recovery strategy, the species are not fully protected under the federal Species At Risk Act, which depends on the recovery strategy for some protections to kick in. All four species' habitat lies along the controversial proposed Enbridge Northern Gateway pipeline and shipping route in northern B.C. 

In the Enbridge Northern Gateway Pipeline hearings, there were about 34 listed species at risk that the panel considered, most of which did not have protected critical habitat in a recovery strategy. In January, environmental groups started other legal proceedings dealing with endangered species and other issues specific to those hearings.

This case dealt only with four species and their protection under federal legislation. The recovery strategy for the Southern Mountain Caribou is currently more than six years overdue. There are 162 recovery strategies for threatened or endangered species well past their legal due date for finalization, leaving them largely unprotected.

In the Federal Court of Canada case, the decision noted that the government responded to the lawsuit by publishing three proposed and one final recovery strategy but noted that "in each case, however, the proposed recovery strategy was published several years after the expiry of the relevant statutory timeline."

The Federal Court also noted that considering species protection in the Enbridge Northern Gateway Pipeline hearings was not the same as legal protection under the Species At Risk Act and that the government's statutory duties to prevent the destruction of "critical habitat" are not generally triggered until such habitat has been identified in a recovery strategy or action plan for the species.

Significantly, the Court also accepted that "as one of the Ministers' own affiants has observed, a recovery strategy should be science-based, not consensus-based" in rejecting the government's contention that stakeholder consultations justified the delays.

The Federal Court has long recognized in a series of decisions enforcing the Act that it is not acceptable for the federal government to continue to delay finalizing recovery strategies under the Species at Risk Act, and in doing so delay habitat protection for at‑risk species.

In trying to address a practical way to force the federal government to comply with its legal obligations under the Act, the Court has crafted some innovative solutions in this case and other similar cases. In this case, the environmental groups obtained an order declaring the delays unlawful and the government has a short time to comply. If it doesn't, the parties can come back and make submissions about it. 

The case is good news for species at risk. It means that it will be increasingly difficult for the federal government to continue to ignore its obligations for the 167 species it has failed to protect. The case uses strong language to address the issues and notes that environmental groups should not have to sue the government 167 times to get it to comply for each species separately.

In a potential effort to avoid these clear legal obligations, the federal government has long been rumoured to have plans to substantially amend or even repeal the Species at Risk Act. This hasn't happened yet, likely because 85 per cent of Canadians support the current legislation's goals to protect species and the majority of Canadians agree that the federal government is not doing enough to protect them.

Laura Bowman is a former lawyer for Ecojustice and has worked on Species At Risk litigation.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

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