Federal Court of Canada
Date: 20140214
Docket: T-1777-12
Citation: 2014 FC 148
Ottawa, Ontario, February 14, 2014
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
WESTERN CANADA WILDERNESS
COMMITTEE, DAVID SUZUKI FOUNDATION,
GREENPEACE CANADA, SIERRA CLUB OF
BRITISH COLUMBIA FOUNDATION, AND
WILDSIGHT
Applicants
And
MINISTER OF FISHERIES AND OCEANS AND
MINISTER OF THE ENVIRONMENT
Respondents
REASONS FOR ORDER AND ORDER
[1] Where a species is identified as being endangered, threatened or extirpated, the Species at
Risk Act, S.C. 2002, c. 29 (“SARA” or “the Act”) requires that a proposed recovery strategy for
the species in question be published by the competent minister within a fixed period of time. The
statute further requires the Minister to publish a final recovery strategy shortly thereafter. Page: 2
[2] The Minister of Fisheries and Oceans did not comply with the statutory timelines for the
preparation and publication of recovery strategies for the White Sturgeon, Nechako River
population (the “Nechako White Sturgeon”) and the Humpback Whale, North Pacific population
(the “Pacific Humpback Whale”). Nor did the Minister of the Environment comply with the
statutory timelines for the preparation and publication of recovery strategies for the Marbled
Murrelet and the Woodland Caribou, Southern Mountain population (the Southern Mountain
Caribou”). These are the four species at issue in these consolidated applications for judicial
review (collectively “the four species”).
[3] The Ministers’ failure to act in a timely fashion in relation to the four species led the
applicants to commence these applications for judicial review. The applicants seek declaratory
relief regarding the Ministers’ conduct and orders of mandamus to compel the Ministers to
perform their statutory duties in relation to the four species.
[4] The commencement of this litigation prompted the publication of proposed recovery
strategies for three of the four species shortly before the start of the hearing, as well as the
publication of a final recovery strategy for one of these species. A proposed recovery strategy
was published for the fourth species shortly after the hearing was concluded. In each case,
however, the proposed recovery strategy was published several years after the expiry of the
relevant statutory timeline.
Page: 3
[5] The Ministers admit that they have failed to comply with their statutory obligations under
SARA. Where they disagree with the applicants is in relation to the legal consequences that
should follow from this breach.
[6] For the reasons that follow, I have concluded that the applications for judicial review
should be granted, and that in light of the egregious delays in each case, a declaration should
issue in relation to the Ministers’ conduct.
[7] Given that proposed recovery strategies have now been published for all four of the
species at issue, the applications for mandamus will be dismissed insofar as they relate to
proposed recovery strategies. In accordance with the agreement of the parties, I will retain
jurisdiction over this matter so as to allow the parties to make further submissions as to whether
orders of mandamus should issue in relation to the publication of final recovery strategies for the
three species for which such strategies have not yet been published.
The Parties
[8] The applicants, the Western Canada Wilderness Committee, the David Suzuki
Foundation, Greenpeace Canada, the Sierra Club of British Columbia Foundation and Wildsight
are non-governmental organizations working to protect Canada’s environment and preserve
Canada’s species at risk. They identify themselves as public interest litigants who have an
interest in the protection and recovery of species at risk in Canada.
Page: 4
[9] No issue has been taken by the Ministers with respect to the applicants’ standing to bring
these applications.
[10] The respondent Minister of Fisheries and Oceans and Minister of the Environment are
“competent ministers” under section 2 of SARA responsible for the four species in issue in these
applications. The Minister of Fisheries and Oceans is the competent minister for the Nechako
White Sturgeon and the Pacific Humpback Whale, whereas the Minister of the Environment is
the competent minister for the Marbled Murrelet and the Southern Mountain Caribou.
The Species at Risk Act
[11] The relevant provisions of SARA came into force on June 5, 2003. Enactment of SARA
had the effect of incorporating the objectives of the Convention on Biological Diversity
(negotiated under the guidance of the United Nations and ratified by Canada in December 1992)
into Canadian legislation.
[12] The purposes of SARA are identified in section 6 of the Act as being “...to prevent
wildlife species from becoming extirpated or becoming extinct, to provide for the recovery of
wildlife species that are extirpated, endangered or threatened as a result of human activity and to
manage species of special concern to prevent them from becoming endangered or threatened”.
The full text of the relevant provisions of SARA are attached as an appendix to these reasons.
[13] Section 2 of the Act defines “species at risk” as meaning “an extirpated, endangered or
threatened species or a species of special concern”. An “extirpated species” is one “that no Page: 5
longer exists in the wild in Canada, but exists elsewhere in the wild”. An “endangered species” is
“a wildlife species that is facing imminent extirpation or extinction”, whereas a “threatened
species” is “a wildlife species that is likely to become an endangered species if nothing is done to
reverse the factors leading to its extirpation or extinction”. Finally, “a species of special concern”
is “a wildlife species that may become a threatened or an endangered species because of a
combination of biological characteristics and identified threats”.
[14] SARA creates a process for the classification of species by level of risk. Section 14 of the
Act establishes the Committee on the Status of Endangered Wildlife in Canada (COSEWIC),
which is an independent committee of experts. Pursuant to subsection 15(1) of the Act,
COSEWIC is mandated to assess the status of each wildlife species that it considers to be at risk,
identify existing and potential threats to the species, and classify the species as being extinct,
extirpated, endangered, threatened or of special concern.
[15] If a species is classified as being “at risk”, then the Minister of the Environment must
make a recommendation to the Governor in Council to either list the species in Schedule 1 to the
Act with the classification assigned by COSEWIC, not list the species or send the matter back to
COSEWIC for reconsideration.
[16] Once a species is listed in Schedule 1 to the Act, section 37(1) provides that the
competent minister must prepare a recovery strategy for the species in question and statutory
timelines begin to run.
Page: 6
[17] Section 42(1) of the Act provides that in the case of an endangered species, the competent
minister must include a proposed recovery strategy for the species in the public registry
established under section 120 of the Act within one year of the species being listed in
Schedule 1. A proposed recovery strategy must be posted in the public registry within two years
after the species is listed in the case of threatened or extirpated species.
[18] Where species are listed in Schedule 1 on the day that the relevant provisions of the Act
came into effect, section 42(2) of SARA requires that the competent minister must include a
proposed recovery strategy in the public registry within three years of that date, in the case of
endangered species, and within four years, in the case of threatened or extirpated species.
[19] Where a species is added to Schedule 1 by the Governor in Council as the result of an
assessment under section 130 of the Act, section 132 of SARA requires that a recovery strategy
for the species must be prepared within three years in the case of endangered species, and within
four years in the case of threatened species.
[20] Regardless of the process followed in listing the species, once a proposed recovery
strategy has been posted for a species at risk, section 43 of the Act provides a 60 day period for
public comment. The competent minister then has a further 30 days in which to review the
comments received, make the appropriate changes and finalize the recovery strategy by posting it
in the public registry.
Page: 7
[21] Recovery strategies must address the threats to the survival of the species, including any
loss of critical habitat. The Minister must then prepare an action plan based upon the recovery
strategy. There is no statutory timeline for the preparation of an action plan.
[22] As noted above, the timelines for the production of proposed and final recovery strategies
depend on the level of risk assessed, and which of several processes was followed in relation to
the listing of the species in question. I do not understand there to be any material disagreemen
between the parties with respect to the applicable timelines identified in the following
paragraphs.
Nechako White Sturgeon
[23] The Nechako White Sturgeon was listed as an endangered species on Schedule 1 of SARA
on August 15, 2006, as a result of an assessment under section 130 of the Act. The respondents
admit that in accordance with section 132 of the Act, the Minister of Fisheries and Oceans was
required to post a proposed recovery strategy for the Nechako White Sturgeon in the public
registry created under the Act within three years - that is by August 15, 2009. The Act further
required that a final recovery strategy be posted in the public registry by no later than
November 16, 2009.
[24] At the time that the applicants commenced their application for mandamus with respect
to the proposed recovery strategy for the Nechako White Sturgeon on September 25, 2012, the
proposed recovery strategy had not yet been posted and was more than three years overdue.
Page: 8
[25] The respondents also admit that as a result of the commencement of this litigation, a
decision was made by the Minister of Fisheries and Oceans to prioritize this case. This led to a
proposed recovery strategy for the Nechako White Sturgeon being posted in the public registry in
mid-December, 2013 - less than a month before the start of this hearing, and more than four
years after the statutory time limit for the posting of such a document had passed.
Pacific Humpback Whale
[26] The Pacific Humpback Whale was listed as a threatened species in Schedule 1 of the
SARA on January 12, 2005, as the result of an assessment under section 130 of the Act. The
Minister of Fisheries and Oceans was therefore required to post a proposed recovery strategy for
the Pacific Humpback Whale in the public registry by January 12, 2009, with a final recovery
strategy due by April 14, 2009.
[27] At the time that the applicants commenced their application for mandamus with respect
to the proposed recovery strategy for the Pacific Humpback Whale, the proposed recovery
strategy had not yet been posted and was nearly four years late.
[28] As was the case with the Nechako White Sturgeon, the commencement of this litigation
caused the Minister of Fisheries and Oceans to move on this case. A proposed recovery strategy
for the Pacific Humpback Whale was posted in the public registry on July 17, 2013, and a final
recovery strategy was released on October 21, 2013 - more than four years after it was due.
Page: 9
[29] Because a final recovery strategy has now been posted for the Pacific Humpback Whale,
the applicants are no longer seeking an order of mandamus with respect to this species, although
they maintain their claim for declaratory relief.
Marbled Murrelet
[30] The Marbled Murrelet is a small fish-eating sea bird that forages in British Columbia
coastal waters and adjacent old-growth forests. The Marbled Murrelet was listed as a threatened
species on June 5, 2003. As a consequence, a proposed recovery strategy was to have been
posted by no later than June 5, 2007, with the final strategy due by September 6, 2007.
[31] At the time that the applicants commenced their application for mandamus with respect
to the proposed recovery strategy for the Marbled Murrelet in September of 2012, no proposed
recovery strategy had yet been posted in the public registry and it was more than five years late.
[32] The commencement of this litigation also prompted the Minister of the Environment to
move this case forward, and a proposed recovery strategy for the Marbled Murrelet was posted in
the public registry on January 7, 2014 - the day before the start of the hearing, and some six and
half years after the statutory time limit for the posting of such a document had passed.
Southern Mountain Caribou
[33] The Southern Mountain Caribou was listed as a threatened species on June 5, 2003. A
proposed recovery strategy should therefore have been posted by no later than June 5, 2007, with
the final recovery strategy required to have been posted by September 6, 2007. No proposed Page: 10
recovery strategy for the Southern Mountain Caribou had been posted at the time that this case
was heard. However, counsel for respondents advised that the Minister of the Environment had
committed to posting a proposed recovery strategy by January 17, 2014, and I was subsequently
advised by that this in fact occurred on that date - some six and a half years after it was due.
The Applications for Judicial Review
[34] The applicants commenced their four applications for judicial review on September 25,
2012. They chose a terrestrial mammal and a migratory bird for whom the Minister of the
Environment was responsible, together with an aquatic mammal and a fish under the jurisdiction
of the Minister of Fisheries and Oceans as the subjects of their applications.
[35] The applicants characterize these four applications as being representative of the endemic
systemic problems that have been encountered with both the Minister of Fisheries and Oceans
and the Minister of the Environment in relation to the implementation of the recovery strategy
provisions of SARA.
[36] By way of relief, the applicants seek a declaration declaring unlawful the Ministers’
ongoing failure or refusal to include proposed recovery strategies for the four species in the
public registry as he or she was required to do pursuant to the provisions of SARA.
[37] The applications also seek orders of mandamus compelling the competent minister to
include proposed recovery strategies for each of the four species in the public registry within 30
days of the date of the Court’s judgment and to include final recovery strategies for the four Page: 11
species in the public registry within 90 days from the date on which the relevant proposed
recovery strategy is included in the public registry.
[38] Finally, the applicants seek their costs, if successful, or an order that the applicants not be
required to pay the Ministers’ costs, in the event the applications are dismissed.
[39] By Order of Prothonotary Lafrenière, the four applications were consolidated and ordered
to be heard together on the basis of a common evidentiary record.
The Minsters’ Concessions
[40] The Ministers have made a number of admissions and concessions that have greatly
assisted in limiting and focusing the issues in this case.
[41] In particular, the Ministers acknowledge that:
1. SARA does not confer any discretion on the Ministers to
extend the time for the performance of their statutory duties
with respect to the preparation and posting of proposed and
final recovery strategies for species at risk;
2. The Ministers are legally required to comply with the
statutory timelines and they have not done so in these
cases;
3. The breaches of the statutory timelines at issue in these
proceedings were not minor: there were “substantial
delays” in the preparation of the proposed recovery
strategies for each of the four species, and the posting of
the documents was “seriously overdue”; and
4. While the Ministers have provided explanations for the
delays in posting the proposed recovery strategies for each
of the four species, these explanations do not change the Page: 12
fact that the Ministers have failed to comply with the
provisions of SARA.
[42] Counsel for the respondents states that the explanations provided for the delays in posting
draft recovery strategies for the four species are not being offered as a justification for the
Ministers’ failure to comply with the provisions of the Act. Rather the reasons for the delays are
something that the Court should take into account in deciding whether or not mandamus should
issue, and in determining the terms of any such order.
[43] The respondents have provided extensive affidavit evidence from four affiants: two
senior managers within the Department of Fisheries and Oceans and two from Environment
Canada.
[44] Before reviewing the explanations provided by the Ministers, however, it is first
necessary to address the motions brought by the parties with respect to the affidavit evidence
filed in this matter.
The Motions to Strike
[45] The applicants brought a motion to strike portions of the respondents’ evidence prior to
commencement of the hearing. The respondents then brought a cross-motion seeking to strike
portions of the affidavit of the applicants’ main affiant, which Prothonotary Lafrenière described
in his August 8, 2013 Order as being essentially a “‘tit-for-tat’ reaction”, rather than one
motivated by a genuine concern about prejudice arising out of the affidavit in issue.
Page: 13
[46] Prothonotary Lafrenière agreed with the applicants that portions of the respondents’
affidavits “contain some hearsay, speculation, arguments and conclusions rather than facts, and
opinion evidence”. However, he was not persuaded that leaving the impugned evidence in the
record would give rise to any serious prejudice or impede the orderly disposition of these
proceedings. Consequently, he dismissed both motions, without prejudice to the rights of the
parties to renew their arguments at the hearing on the merits.
[47] At the hearing, the parties agreed that they were content to leave the impugned portions
of their opponents’ evidence in the record, and to have their objections taken into account by the
Court in determining the weight to be ascribed to the competing evidence. The applicants also
confirmed that they are no longer seeking leave to file further affidavits in this matter in response
to some of the respondents’ evidence.
[48] In light of the recent developments in this case, as well as the various concessions and
admissions made by counsel for the Ministers, it has not been necessary to review the parties’
evidence in any detail in these reasons. While I agree with the applicants that there are frailties in
some of the respondents’ evidence, I have nevertheless taken all of the evidence into account in
arriving at my decision.
The Ministers’ Explanations
[49] Although the facts giving rise to the delays in posting proposed recovery strategies differ
somewhat from species to species, the respondents highlight four central challenges they say that
they faced in preparing proposed recovery strategies for the four species. Page: 14
[50] First, the enactment of SARA required the Ministers to develop new policies, standards,
administrative structures and consultation processes. They also had to acquire the scientific
expertise that was required to implement the legislation. All of this took time.
[51] Secondly, several of the respondents’ affiants attribute at least some of the delays in
producing recovery strategies to “organizational capacity issues”, including staff turnover.
Delays were also attributed to the need to manage competing legal duties, including the need to
consult with stakeholders including provincial governments, First Nations, landowners and
industry representatives.
[52] It should, however, be noted that although a lack of resources was a recurring theme in
the respondents’ evidence, counsel for the respondents advised the Court that he had been
specifically instructed not to raise a lack of resources as a justification for the delay in posting
proposed recovery strategies for the four species.
[53] Thirdly, the Ministers say that they faced scientific challenges, particularly in relation to
the identification of critical habitat for the species in question.
[54] “Critical habitat” is defined in section 2 of SARA as “habitat that is necessary for the
survival or recovery of a listed wildlife species and that is identified as the species’ critical
habitat in the recovery strategy or in an action plan for the species”. The identification of the
species’ critical habitat is necessary to the survival and recovery of a species: indeed, the Page: 15
preamble to SARA describes the preservation of the habitat of species at risk as being “key to
their conservation”.
[55] Finally, the Ministers describe the challenges that they say they faced in responding to
change, in particular, the evolving understanding of the law resulting from various decisions of
this Court. For example, the Department of Fisheries and Oceans undertook “an extensive policy
analysis” in order to develop new operational guidelines for identifying critical habitat in the
wake of this Court’s decisions in Environmental Defence Canada v. Canada (Minister of
Fisheries and Oceans), 2009 FC 878, 349 F.T.R. 225 (“Nooksack Dace”) and Georgia Strait
Alliance v. Canada (Minister of Fisheries and Oceans), 2010 FC 1233, [2012] 3 F.C.R. 136
rev’d in part on other grounds 2012 FCA 40, 427 N.R. 110 (“Orca”).
The Consequences of the Ministers’ Failure to Act
[56] The applicants point out that the failure to post recovery strategies for the four species in
a timely manner has had adverse consequences for the species as it deprives them of an identified
critical habitat. This in turn prevents the implementations of recovery measures, and denies the
species the legal protection of their critical habitat and the prohibition of its destruction.
[57] The applicants are particularly concerned that the critical habitat of the four species is at
risk from industrial development affecting the coast of British Columbia. As an example, the
applicants cite Enbridge’s proposed Northern Gateway pipeline development project which, they
say, will have a negative impact on all four of the species at issue in these applications. I do not Page: 16
understand the respondents to take issue with this proposition, although they do deny that
recovery strategies have been intentionally delayed in order to facilitate industrial development.
[58] The Ministers submit that the work done in the preparation of proposed recovery
strategies for the four species was used by their Departments in formulating submissions to the
Enbridge Northern Gateway Project Joint Review Panel. The submissions related to the potential
impact of the project on the four species and potential mitigation measures to lessen those
impacts.
[59] I accept that the work done by the Ministers in relation to proposed recovery strategies
for the four species may well have been of assistance in formulating submissions to the Enbridge
Northern Gateway Project Joint Review Panel with respect to the potential impact of the project
on the four species.
[60] That said, the absence of posted recovery strategies deprives the Ministers of
considerable leverage in dealing with the impact of industrial development on species at risk.
Moreover, the making of submissions to a regulatory panel of this nature cannot be equated to
the level of protection that would be provided to the four species, had recovery strategies been
posted for them in a timely fashion. As the applicants point out, the respondents’ 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.
Page: 17
The Issues
[61] The parties have characterized the issues raised by these applications in different ways. I
agree with the respondents that the cases ultimately raise two fundamental questions. The first is
whether there has been a breach of the Ministers’ statutory duty to post proposed recovery
strategies for the four species within the statutory timelines. As noted earlier, the respondents
concede that there has indeed been such a statutory breach.
[62] This leads us to the second question, which is what consequences should flow from that
breach? I will deal with the issues identified by the applicants, including the relevance of a
standard of review analysis to this case and the legal nature of the statutory timelines in issue, in
that context.
Should Declaratory Relief be Granted?
[63] The Ministers submit that declaratory relief should not be granted in this case. According
to the Ministers, the fact that they have conceded that they were legally required to meet the
statutory timelines for the posting of proposed recovery strategies and that they failed to do so
means that declarations would serve no practical utility.
[64] In support of this contention, the respondents rely on the decision of the Supreme Court
of Canada in Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3
S.C.R. 535, at para. 14, where the Court stated that “Courts generally do not make declarations in
relation to matters not in dispute between the parties to the litigation”. See also Solosky v Her
Majesty the Queen, [1980] 1 S.C.R. 821, 105 D.L.R. (3d) 745. Page: 18
[65] While this is unquestionably true as a general proposition, the Court has a broad
discretionary power in relation to the granting of declaratory relief, and there are cases where the
granting of such relief may nevertheless be appropriate: see, for example, K'Omoks First Nation
v. Canada (Attorney General), 2012 FC 1160, 419 F.T.R. 144, at para. 44. This is just such a
case.
[66] Declaratory relief may address the legality of government action, both prospectively and
retrospectively: Reece v. Edmonton (City), 2011 ABCA 238, 335 DLR (4th) 600, at para. 163,
per Chief Justice Fraser, dissenting, but not on this point. Moreover, public officials are not
above the law. If an official acts contrary to a statute, the Courts are entitled to so declare: see
Singh v. Canada (Minister of Citizenship and Immigration), 2010 FC 757, 372 F.T.R. 40, at para.
40, citing Canada v. Kelso, [1981] 1 S.C.R. 199 at 210.
[67] A review of the record in these matters gives rise to a number of concerns. The
development of a proposed recovery strategy for a species at risk is undoubtedly a complex
process involving the need to reconcile competing statutory requirements and Departmental
priorities, and to consult with multiple stakeholders, other levels of government and First
Nations. The process also presents the Ministers with various administrative challenges, and
involves an evolving base of scientific knowledge. One has to assume, however, that Parliament
knew what it was doing when it established the timelines for the preparation of proposed
recovery strategies in sections 42 and 132 of SARA.
Page: 19
[68] It is apparent that the posting of proposed recovery strategies were delayed in these cases,
in part, as a result of a desire to achieve consensus amongst the stakeholders. This is particularly
so for the aquatic species under the jurisdiction of the Minister of Fisheries and Oceans.
[69] While the achievement of a consensus may be desirable, it is not a legislative requirement
for a recovery strategy. Indeed, section 39 of SARA only contemplates that there be cooperation
with others “to the extent possible”. Subject to the Ministers’ constitutional obligations to consult
with First Nations, I agree with the applicants that consensus should not be pursued at the
expense of compliance with the Ministers’ statutory obligations.
[70] Furthermore, as one of the Ministers’ own affiants has observed, a recovery strategy
should be science-based, not consensus-based: see the cross-examination of Robert McLean, the
Executive Director of Environment Canada’s Canadian Wildlife Service, at pages 3007 and 3022
of the applicants’ record. See also Nooksack Dace, at para. 41.
[71] Insofar as the scientific basis for the proposed recovery strategies is concerned, I agree
with the applicants that “the perfect should not become the enemy of the good” in these cases.
Section 38 of SARA (which incorporates the “precautionary principle” into the Act) is very clear:
the preparation of a recovery strategy for a species at risk “should not be postponed for a lack of
full scientific certainty”.
[72] The precautionary principle was discussed by the Supreme Court of Canada in 114957
Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. Page: 20
241. Citing the Bergen Ministerial Declaration on Sustainable Development (1990), the Court
noted that “[e]nvironmental measures must anticipate, prevent and attack the causes of
environmental degradation”. As a result, “[w]here there are threats of serious or irreversible
damage, lack of full scientific certainty should not be used as a reason for postponing measures
to prevent environmental degradation”: at para. 31
[73] Indeed, as Justice Russell observed in his decision in the Orca case, “[e]ndangered
species do not have time to wait for [the competent minister] to ‘get it right’”: at para. 66.
[74] It is also important to remember that proposed recovery strategies are, by their very
nature, open to change based upon additional input received by the competent minister through
the consultation process. Moreover, the content of final recovery strategies and action plans are
not cast in stone. SARA specifically contemplates that amendments can be made to each
document at any time (see subsection 45(1) in the case of recovery strategies and subsection
52(1) in the case of action plans).
[75] It is also apparent from a review of the record that conscious decisions were made from
time to time within the Ministers’ Departments to delay or defer the preparation of proposed
recovery strategies for the four species.
[76] By way of example, in the case of the Marbled Murrelet, multiple proposed recovery
strategies were prepared for the bird between 2003 and 2007. A proposed recovery strategy was
sent to the headquarters of Environment Canada’s Canadian Wildlife Service for approval and Page: 21
posting in February of 2008 (eight months after the expiry of the relevant statutory timeline for
the posting of the document).
[77] According to the respondents’ evidence, the proposed recovery strategy was then
“queued for review and approval”. However, it was not reviewed by headquarters personnel for
over a year. When the document was finally reviewed by the Executive Committee of the
Canadian Wildlife Service in the Spring of 2009, certain rewrites to the document were required,
although I note that there is some disagreement between the respondents’ affiants as to the extent
of the additional work that was necessary in order to finalize the document at the regional level.
[78] According to the affidavit of Dr. Barry Douglas Smith, the Regional Director of
Environment Canada’s Canadian Wildlife Service’s Pacific and Yukon Region, the re-writes
were completed with the intent to post the proposed recovery strategy for the Marbled Murrelet
in the public registry by the summer of 2009: Smith affidavit at para. 80. However, the release of
this Court’s decision in Alberta Wilderness Assn. v. Canada (Minister of Environment), 2009 FC
710, 349 F.T.R. 63 (“Sage Grouse”) in the summer of 2009 caused publication to be postponed
so as to allow for at least a partial identification of the species’ critical habitat.
[79] What happened next? The short answer is: not much. Dr. Smith deposes that due to staff
shortages and “the need to make progress against the large number of overdue recovery
strategies for other species”, work to identify the critical habitat for the Marbled Murrelet was
not completed in 2009-2010 and the decision was made to defer the work to the next financial
year: Smith affidavit at para. 84. Page: 22
[80] However the work was not completed in the 2010-2011 financial year either. Dr. Smith
explains in his affidavit that “due to significant capacity constraints” he “deemed it an acceptable
risk to prioritize work on species at risk with smaller populations and more immediate threats”:
Smith affidavit at para. 85.
[81] Staffing issues also appear to have prevented any substantive work being carried out on
the proposed recovery strategy for the Marbled Murrelet in the 2011-2012 fiscal year. Indeed, it
was not until it was identified as a priority matter in November of 2012 that substantive work on
a proposed recovery strategy for the Marbled Murrelet recommenced - after this litigation had
been started, and more than five years after SARA required that a proposed recovery strategy be
posted for the bird: Smith affidavit at paras. 86-88.
[82] As was noted earlier, a proposed recovery strategy for the Marbled Murrelet was posted
in the public registry on January 7, 2014 - the day before the commencement of this hearing, and
some six and half years after the statutory time limit for the posting of such a strategy had
passed.
[83] While the cause of much of the delay described by Dr. Smith in his affidavit ultimately
boils down to a question of resources, it bears repeating that the Ministers expressly do not rely
on a lack of resources as a justification for the delay in relation to the species at issue in these
applications.
Page: 23
[84] The commencement of this litigation has caused the responsible Ministers to put these
files “on the top of the pile”, with the result that proposed recovery strategies have now been
posted for the four species. However, the flurry of recent activity on these files does not address
any deterioration in conditions for the four species at issue that may have occurred in the
intervening years when the Ministers were in breach of their statutory duties.
[85] 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.
[86] 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
[87] However, responding on an ad hoc basis to external pressures such as pending litigation
fails to take into account the fact that Parliament has itself assigned priorities in dealing with
these matters, by fixing different timelines for the preparation of proposed recovery strategies for
listed species that are based upon the extent to which the species are at risk.
Page: 24
[88] The respondents agree that the applicants should not be expected to commence 167
additional applications for judicial review in order to compel the responsible Ministers to comply
with their statutory duties. Nor would this be an answer to the underlying systemic problems that
exist in the species at risk protection process, as clearly one cannot prioritize every case without
rendering prioritization meaningless.
[89] I agree with the respondents that bad faith has not been demonstrated in these cases.
However, the respondents also acknowledge that bad faith is not required for declaratory relief to
be granted.
[90] The Supreme Court of Canada has observed that adherence to the rule of law is a major
feature of the Canadian democracy: Doucet-Boudreau v. Nova Scotia (Minister of Education),
2003 SCC 62, [2003] 3 S.C.R. 3 at para. 31. Moreover, as Chief Justice Fraser observed in her
dissenting opinion in Reece, the rule of law allows citizens to come to the Courts to enforce the
law as against the executive branch of government.
[91] Chief Justice Fraser went on to observe that “… [C]ourts have the right to review actions
by the executive branch to determine whether they are in compliance with the law and, where
warranted, to declare government action unlawful. This right in the hands of the people is not a
threat to democratic governance but its very assertion”: at para. 159.
[92] 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 Page: 25
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.
[93] Indeed, the issues that were originally raised by these applications are “genuine, not moot
or hypothetical” insofar as there remain numerous species at risk for which the posting of
proposed recovery strategies is long overdue: Danada Enterprises Ltd. v. Canada (Attorney
General), 2012 FC 403, 407 F.T.R. 268 at para. 67. I am, moreover, satisfied that a declaration
will serve a useful purpose and will have a “practical effect” in resolving the problems identified
by these cases: see Solosky, above, at 832-833.
[94] Accordingly, a declaration will issue declaring the Ministers’ failure to include proposed
recovery strategies for the four species in the public registry within the statutory time periods set
out in sections 42 and 132 of SARA to be unlawful. Given that the statutory timeline for posting
final recovery strategies for three of the four species has not yet passed, and there appears to
have been substantial compliance with the statutory timelines for the posting of a final recovery
strategy for the Pacific Humpback Whale, I decline to grant any declaratory relief in this regard.
[95] Before leaving this issue, I would note that the parties spent some time in their
submissions discussing whether the timelines established by SARA for the posting of proposed
recovery strategies were “mandatory” or “directory”. While asserting that this is “an irrelevant
distraction” in this case, the applicants nevertheless submit that the timelines are “mandatory”, as Page: 26
SARA provides that relevant competent minister “must” post proposed and final recovery
strategies within certain specified timeframes.
[96] In contrast, the respondents contend that the SARA timelines are not mandatory in the
“administrative law sense”, but are rather “directory”. In support of this contention, the
respondents point out that the duty being discharged is a public one, and the Act does not provide
for a penalty for failure to comply with the timelines in issue. Moreover, the balance of
inconvenience suggests that the timelines should be interpreted as directory rather than
mandatory because interpreting them as mandatory would be contrary to achieving the goals of
SARA.
[97] In particular, the respondents say that interpreting the timelines as mandatory would
mean that the Ministers would lose the power to post recovery strategies for the species at risk
once the deadlines set out in the Act had passed
[98] It is apparent from the jurisprudence cited by the parties that the significance of the
distinction between “mandatory” or “directory” timelines is that, as the respondents suggest, a
public authority exercising a statutory power loses jurisdiction once the timeline has passed: see
Reference re Manitoba Language Rights (Man.), [1985] 1 S.C.R. 721, [1985] S.C.J. No. 36, at
para. 35.
Page: 27
[99] In this case, the parties all agree that the Ministers do not lose jurisdiction after the expiry
of the time periods set out in sections 42 and 132 of SARA, and can continue to develop and post
proposed recovery strategies after expiry of the time periods specified in the legislation.
[100] Given the parties’ agreement on this point, I do not need to decide whether the timelines
contained in sections 42 and 132 of SARA are mandatory or directory. However, the fact that the
timelines may be directory rather than “mandatory” (in the legal sense) does not mean that they
are optional, or that the responsible Ministers do not have to comply with them. Indeed, counsel
for the Ministers acknowledged that the Ministers are indeed required to comply with the statute
in this regard.
[101] 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.
[102] 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.
The Applicants’ Request for Mandamus
[103] The next issue for consideration is the applicants’ request for mandamus.
Page: 28
[104] The applicants’ Notices of Application seek orders of mandamus compelling the relevant
competent minister to include a proposed recovery strategy for each of the four species in the
public registry within 30 days of the Court’s judgment in this matter.
[105] Orders of mandamus are also sought to compel the relevant competent minister to include
final recovery strategies for the four species in the public registry within 90 days of the Court’s
judgment.
[106] As noted earlier, both a proposed and a final recovery strategy have already been posted
for the Pacific Humpback Whale, with the result that the applicants no longer seek an order of
mandamus in this regard.
[107] Insofar as the other three species are concerned, the Ministers’ memorandum of fact and
law states that they do not dispute that most of the elements of the test for mandamus established
by Federal Court of Appeal in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742,
[1993] F.C.J. No. 1098, have either been met in this case, or are not applicable.
[108] However, the Ministers took the position in their memorandum that the right to the
performance of their statutory duty had not been established insofar as the requests for
mandamus with respect to the posting of proposed recovery strategies for the three remaining
species are concerned. This is because they say that the delay in these cases is not unreasonable
in light of the explanations that have been provided.
Page: 29
[109] The applicants submit that the Federal Court of Appeal has already determined in its
decision in Orca that the standard of review applicable to the Ministers’ interpretation of the
provisions of SARA is that of correctness: see Georgia Strait Alliance v. Canada (Minister of
Fisheries and Oceans), 2012 FCA 40, [2012] F.C.J. No. 157, at paras. 6 and 98-105.
[110] In light of this, the applicants say that the Ministers should not be allowed to do an ‘end
run’ around the Federal Court of Appeal’s decision in Orca by applying a reasonableness
analysis in assessing the Ministers’ conduct when deciding whether mandamus should issue.
[111] I have some difficulty with the applicants’ submissions on this point, given that there is
no disagreement between the parties as to the proper interpretation of the relevant provisions of
SARA.
[112] What is at issue in these proceedings is not the judicial review of a Ministerial decision or
action, but rather an attempt to compel the performance of a statutory duty in light of prolonged
inaction. As such the question is whether the requirements of mandamus have been met. One of
these involves the determination of whether the Ministers have provided a reasonable
explanation for the delay.
[113] However, as will be explained below, I do not have to finally determine whether a
standard of review analysis should enter in the equation in applications for mandamus in light of
the recent developments in these cases.
Page: 30
[114] The Ministers’ position has evolved as a result of these developments. At the hearing of
this matter, the Ministers submitted that the request for mandamus in relation to the inclusion of
proposed recovery strategies in the public registry for each of the four species is now moot,
given that proposed recovery strategies have now been posted for all four of the species.
[115] While not explicitly abandoning this aspect of their application for mandamus, I do not
understand the applicants to still be seriously pressing their request for relief with respect to the
proposed recovery strategies. Even if I am mistaken in this understanding, I agree with the
Ministers that this aspect of the applicants’ request for mandamus is indeed now moot.
[116] The next issue, then, is the applicants’ request for orders of mandamus compelling the
relevant competent minister to include a final recovery strategy in the public registry within 90
days of the Court’s judgment for each of the three species for which such strategies remain
outstanding.
[117] The Ministers resist this relief being granted, submitting that the applicants’ request for
mandamus is premature. In support of this contention they point out that the 60 day time period
set out in subsection 43(1) allowing for public comments on the proposed recovery strategies and
the additional 30 day period set out in subsection 43(2) of SARA for the finalization of such
strategies have not yet elapsed. As a result, the Ministers say that there is not yet a public legal
duty to act.
Page: 31
[118] Given that the Minister of the Environment was prepared to make a commitment to post a
proposed recovery strategy for the Southern Mountain Caribou by a specified date, the Court
asked counsel for the respondents whether the Ministers were prepared to offer a similar
commitment with respect to the posting of final recovery strategies for the Southern Mountain
Caribou, the Marbled Murrelet, and the Nechako White Sturgeon within the 90 day period
contemplated by section 43 of SARA.
[119] Counsel advised that the Ministers could offer no such commitment as they do not yet
know the nature of the comments that will be offered during the 60 day period, nor can they
currently anticipate the nature and extent of the modifications that may need to be made to the
proposed recovery strategies before the documents can be finalized.
[120] Counsel was then asked if this meant that the applicants would have to commence fresh
applications for mandamus in the event that the Ministers did not post final recovery strategies
for one or more of the three species at issue within the time period set out in section 43 of SARA.
[121] Counsel for the Ministers agreed that the applicants should not be obliged to start over,
suggesting that the better course would be for the Court to retain jurisdiction over these matters
so as to allow the applicants to bring this aspect of their claim for relief back before this Court in
the event that they become concerned that final recovery strategies for any of the three species in
issue have not been finalized in a timely manner.
Page: 32
[122] The applicants would prefer that the Court make orders of mandamus to compel the
performance of the Ministers’ statutory duty to provide final recovery strategies within 90 days
of the publication of the proposed recovery strategies in the public registry. However, they agree
that in the event that the Court is not prepared to make such an order, it should indeed retain
jurisdiction in order to deal with future developments in these matters in the event that it
becomes necessary to do so.
[123] I agree with the Ministers that the applicants’ request for mandamus in relation to the
posting of final recovery strategies for the three species in question is indeed premature. The
timelines contained in section 43 of SARA are only triggered once a proposed recovery strategy
has been included in the public registry. Those timelines have not yet expired, with the result that
there is currently no public legal duty on the part of the Ministers to act in relation to the posting
of final recovery strategies for the Southern Mountain Caribou, the Marbled Murrelet, and the
Nechako White Sturgeon.
[124] An order of mandamus will not be granted to compel a public official to act in a specified
manner if he or she is not under an obligation to act as of the date of the hearing: Apotex, above
at para. 51. See also British Columbia (Attorney General) v. Canada (Attorney General), [1994]
2 S.C.R. 41 at para. 157, 114 D.L.R. (4th) 193, at para. 157.
[125] I concur with the parties that it is appropriate for the Court to retain jurisdiction in this
matter. This would obviate the need for the applicants to start over with fresh applications for
mandamus to compel the performance of the Ministers’ statutory duties in the event that final Page: 33
recovery strategies are not posted in the public registry in a timely manner. This would obviously
be a more efficient use of the resources of all concerned.
[126] I note that a similar approach has been taken by this Court in immigration matters: see
Zaib v. Canada (Minister of Citizenship and Immigration), 2008 FC 687, [2008] F.C.J. No. 880
and Rousseau v. Canada (Minister of Citizenship and Immigration), 2004 FC 602, 252 F.T.R.
309. This Court also suspended the granting of relief in another SARA case so as to allow the
responsible Minister to comply with his statutory duties: see Athabasca Chipewyan First Nation
v. Canada (Minister of the Environment), 2011 FC 962, [2011] 4 C.N.L.R. 17 at para. 73.
[127] The parties have agreed to the terms of the order that they seek. In accordance with this
agreement, I will adjourn the applicants’ application insofar as it seeks mandamus to compel the
posting of final recovery strategies for the Southern Mountain Caribou, the Marbled Murrelet,
and the Nechako White Sturgeon.
[128] If necessary, a case management conference will be scheduled with the parties to be held
in late April or early May, following the expiry of the last of the 60 and 30 day periods referred
to in section 43 of SARA for the posting of final recovery strategies for these species.
[129] The parties are directed to consult with one another with respect to the progress of these
matters in advance of the case management conference, in order to determine whether the
conference is necessary, and to attempt to resolve any outstanding issues without the need for
further judicial intervention. Page: 34
[130] In the event that it is necessary to proceed, the respondents will advise the Court at the
case management conference as to whether the relevant final recovery strategies have been
posted in the public registry for the three species still at issue. The applicants will advise the
Court whether they intend to pursue their applications for mandamus in relation to the release of
final recovery strategies for some or all of these species.
[131] In the event that the applicants do intend to pursue their requests for orders of mandamus,
the Court will establish a schedule for the filing of further evidence, cross-examinations (if any)
on that further evidence, the exchange of written submissions (including reply submissions from
the applicants, if necessary), and any further appearances of the parties that may be required.
Costs
[132] These applications have been brought by the applicants, acting in the public interest, to
compel the Ministers to perform their statutory duties under SARA, something that they
admittedly have not done.
[133] The commencement of this litigation has had the salutary effect of prompting the
Ministers to prepare and post proposed recovery strategies for the four species at issue in these
applications. The fact that I have not acceded to the applicants’ request for mandamus in relation
to the posting of proposed recovery strategies is no reflection on the merits of their claim, but is
rather a function of the Ministers’ last-minute performance of their statutory duties in this regard.
Page: 35
[134] The applicants have, moreover, succeeded in persuading me that the granting of
declaratory relief is appropriate in this case.
[135] In these circumstances I am satisfied that the applicants should have their costs of these
applications to date. In accordance with the agreement of the parties, these costs are fixed in the
amount of $22,500, inclusive of disbursements.
Page: 36
ORDER
THIS COURT ORDERS AND ADJUDGES THAT:
1. These applications are granted, in part;
2. This Court declares that the Minister of Fisheries and Oceans has acted unlawfully in
failing to post proposed recovery strategies for the Pacific Humpback Whale and the
Nechako White Sturgeon within the statutory timelines prescribed in the Species at
Risk Act;
3. This Court further declares that the Minister of the Environment has acted unlawfully
in failing to post proposed recovery strategies for the Marbled Murrelet and the
Southern Mountain Caribou within the statutory timelines prescribed in the Species at
Risk Act;
4. The applications are dismissed insofar as they relate to requests for orders of
mandamus to compel the posting of proposed recovery strategies for the four species;
5. The applications are adjourned sine die as they relate to the applicants’ requests for
orders of mandamus to compel the posting of final recovery strategies for the
Nechako White Sturgeon, the Marbled Murrelet and the Southern Mountain Caribou,
and this Court will retain jurisdiction over these aspects of the applications; Page: 37
6. If necessary, a case management conference will be scheduled with the parties to be
held in late April or early May. The parties shall confer in advance of this case
conference and shall come to the conference prepared to address the necessity of
further hearings in these matters and a schedule for the next steps in the litigation;
7. The applicants shall have their costs to date of these applications fixed in the amount
of $22,500, inclusive of disbursements; and
8. A copy of the reasons should be placed on Court files T-1778-12, T-1779-12 and
T-1780-12.
"Anne L. Mactavish"
Judge
Page: 38
Appendix
Species at Risk Act, SC 2002, c. 29
2. (1) The definitions in this subsection
apply in this Act.
…
“competent minister” means
…
(b) the Minister of Fisheries and Oceans
with respect to aquatic species …; and
(c) the Minister of the Environment with
respect to all other individuals.
2. (1) Les définitions qui suivent
s’appliquent à la présente loi.
[. . .]
« ministre compétent »
[. . .]
b) en ce qui concerne les espèces
aquatiques [. . .], le ministre des Pêches et
des Océans;
c) en ce qui concerne tout autre individu, le
ministre de l’Environnement.
6. The purposes of this Act are to prevent
wildlife species from being extirpated or
becoming extinct, to provide for the
recovery of wildlife species that are
extirpated, endangered or threatened as a
result of human activity and to manage
species of special concern to prevent them
from becoming endangered or threatened.
6. La présente loi vise à prévenir la
disparition — de la planète ou du Canada
seulement — des espèces sauvages, à
permettre le rétablissement de celles qui,
par suite de l’activité humaine, sont
devenues des espèces disparues du pays, en
voie de disparition ou menacées et à
favoriser la gestion des espèces
préoccupantes pour éviter qu’elles ne
deviennent des espèces en voie de
disparition ou menacées.
14. The Committee on the Status of
Endangered Wildlife in Canada is hereby
established.
14. Est constitué le Comité sur la situation
des espèces en péril au Canada.
15. (1) The functions of COSEWIC are to
(a) assess the status of each wildlife species
considered by COSEWIC to be at risk and,
as part of the assessment, identify existing
and potential threats to the species and
15. (1) Le COSEPAC a pour mission :
a) d’évaluer la situation de toute espèce
sauvage qu’il estime en péril ainsi que,
dans le cadre de l’évaluation, de signaler
les menaces réelles ou potentielles à son
égard et d’établir, selon le cas :
Page: 39
(i) classify the species as extinct,
extirpated, endangered, threatened or of
special concern,
(ii) indicate that COSEWIC does not
have sufficient information to classify
the species, or
(iii) indicate that the species is not
currently at risk;
(b) determine when wildlife species are to
be assessed, with priority given to those
more likely to become extinct;
(c) conduct a new assessment of the status
of species at risk and, if appropriate,
reclassify or declassify them;
(c.1) indicate in the assessment whether the
wildlife species migrates across Canada’s
boundary or has a range extending across
Canada’s boundary;
(d) develop and periodically review criteria
for assessing the status of wildlife species
and for classifying them and recommend
the criteria to the Minister and the
Canadian Endangered Species
Conservation Council; and
(e) provide advice to the Minister and the
Canadian Endangered Species
Conservation Council and perform any
other functions that the Minister, after
consultation with that Council, may assign.
(i) que l’espèce est disparue, disparue
du pays, en voie de disparition,
menacée ou préoccupante,
(ii) qu’il ne dispose pas de
l’information voulue pour la classifier,
(iii) que l’espèce n’est pas actuellement
en péril;
b) de déterminer le moment auquel doit
être effectuée l’évaluation des espèces
sauvages, la priorité étant donnée à celles
dont la probabilité d’extinction est la plus
grande;
c) d’évaluer de nouveau la situation des
espèces en péril et, au besoin, de les
reclassifier ou de les déclassifier;
c.1) de mentionner dans l’évaluation le fait
que l’espèce sauvage traverse la frontière
du Canada au moment de sa migration ou
que son aire de répartition chevauche cette
frontière, le cas échéant;
d) d’établir des critères, qu’il révise
périodiquement, en vue d’évaluer la
situation des espèces sauvages et
d’effectuer leur classification, ainsi que de
recommander ces critères au ministre et au
Conseil canadien pour la conservation des
espèces en péril;
e) de fournir des conseils au ministre et au
Conseil canadien pour la conservation des
espèces en péril et d’exercer les autres
fonctions que le ministre, après
consultation du conseil, peut lui confier.
Page: 40
(2) COSEWIC must carry out its
functions on the basis of the best available
information on the biological status of a
species, including scientific knowledge,
community knowledge and aboriginal
traditional knowledge.
(3) COSEWIC must take into account
any applicable provisions of treaty and land
claims agreements when carrying out its
functions.
(2) Il exécute sa mission en se fondant
sur la meilleure information accessible sur
la situation biologique de l’espèce en
question notamment les données
scientifiques ainsi que les connaissances
des collectivités et les connaissances
traditionnelles des peuples autochtones.
(3) Pour l’exécution de sa mission, il
prend en compte les dispositions
applicables des traités et des accords sur
des revendications territoriales.
27. (1) The Governor in Council may, on
the recommendation of the Minister, by
order amend the List in accordance with
subsections (1.1) and (1.2) by adding a
wildlife species, by reclassifying a listed
wildlife species or by removing a listed
wildlife species, and the Minister may, by
order, amend the List in a similar fashion in
accordance with subsection (3).
(1.1) Subject to subsection (3), the
Governor in Council, within nine months
after receiving an assessment of the status
of a species by COSEWIC, may review
that assessment and may, on the
recommendation of the Minister,
(a) accept the assessment and add the
species to the List;
(b) decide not to add the species to the
List; or
(c) refer the matter back to COSEWIC
for further information or consideration.
(1.2) Where the Governor in Council
takes a course of action under paragraph
(1.1)(b) or (c), the Minister shall, after the
approval of the Governor in Council,
27. (1) Sur recommandation du ministre,
le gouverneur en conseil peut, par décret,
modifier la liste conformément aux
paragraphes (1.1) et (1.2) soit par
l’inscription d’une espèce sauvage, soit par
la reclassification ou la radiation d’une
espèce sauvage inscrite et le ministre peut,
par arrêté, modifier la liste conformément
au paragraphe (3) de la même façon.
(1.1) Sous réserve du paragraphe (3),
dans les neuf mois suivant la réception de
l’évaluation de la situation d’une espèce
faite par le COSEPAC, le gouverneur en
conseil peut examiner l’évaluation et, sur
recommandation du ministre :
a) confirmer l’évaluation et inscrire
l’espèce sur la liste;
b) décider de ne pas inscrire l’espèce
sur la liste;
c) renvoyer la question au COSEPAC
pour renseignements supplémentaires ou
pour réexamen.
(1.2) Si le gouverneur en conseil prend
des mesures en application des alinéas
(1.1)b) ou c), le ministre est tenu, avec
l’agrément du gouverneur en conseil, de Page: 41
include a statement in the public registry
setting out the reasons.
(2) Before making a recommendation in
respect of a wildlife species or a species at
risk, the Minister must
(a) take into account the assessment of
COSEWIC in respect of the species;
(b) consult the competent minister or
ministers; and
(c) if the species is found in an area in
respect of which a wildlife management
board is authorized by a land claims
agreement to perform functions in respect
of a wildlife species, consult the wildlife
management board.
(3) Where the Governor in Council has
not taken a course of action under
subsection (1.1) within nine months after
receiving an assessment of the status of a
species by COSEWIC, the Minister shall,
by order, amend the List in accordance
with COSEWIC’s assessment.
mettre dans le registre une déclaration
énonçant les motifs de la prise des mesures.
(2) Avant de faire une recommandation à
l’égard d’une espèce sauvage ou d’une
espèce en péril, le ministre :
a) prend en compte l’évaluation de la
situation de l’espèce faite par le
COSEPAC;
b) consulte tout ministre compétent;
c) si l’espèce se trouve dans une aire à
l’égard de laquelle un conseil de gestion
des ressources fauniques est habilité par un
accord sur des revendications territoriales à
exercer des attributions à l’égard d’espèces
sauvages, consulte le conseil.
(3) Si, dans les neuf mois après avoir
reçu l’évaluation de la situation de l’espèce
faite par le COSEPAC, le gouverneur en
conseil n’a pas pris de mesures aux termes
du paragraphe (1.1), le ministre modifie,
par arrêté, la liste en conformité avec cette
évaluation.
37. (1) If a wildlife species is listed as an
extirpated species, an endangered species
or a threatened species, the competent
minister must prepare a strategy for its
recovery.
(2) If there is more than one competent
minister with respect to the wildlife
species, they must prepare the strategy
together and every reference to competent
minister in sections 38 to 46 is to be read as
a reference to the competent ministers.
37. (1) Si une espèce sauvage est inscrite
comme espèce disparue du pays, en voie de
disparition ou menacée, le ministre
compétent est tenu d’élaborer un
programme de rétablissement à son égard.
(2) Si plusieurs ministres compétents
sont responsables de l’espèce sauvage, le
programme de rétablissement est élaboré
conjointement par eux. Le cas échéant, la
mention du ministre compétent aux articles
38 à 46 vaut mention des ministres
compétents.
Page: 42
38. In preparing a recovery strategy, action
plan or management plan, the competent
minister must consider the commitment of
the Government of Canada to conserving
biological diversity and to the principle
that, if there are threats of serious or
irreversible damage to the listed 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.
38. Pour l’élaboration d’un programme de
rétablissement, d’un plan d’action ou d’un
plan de gestion, le ministre compétent tient
compte de l’engagement qu’a pris le
gouvernement du Canada de conserver la
diversité biologique et de respecter le
principe selon lequel, s’il existe une
menace d’atteinte grave ou irréversible à
l’espèce sauvage inscrite, le manque de
certitude scientifique ne doit pas être
prétexte à retarder la prise de mesures
efficientes pour prévenir sa disparition ou
sa décroissance.
39. (1) To the extent possible, the recovery
strategy must be prepared in cooperation
with
(a) the appropriate provincial and territorial
minister for each province and territory in
which the listed wildlife species is found;
(b) every minister of the Government of
Canada who has authority over federal land
or other areas on which the species is
found;
(c) if the species is found in an area in
respect of which a wildlife management
board is authorized by a land claims
agreement to perform functions in respect
of wildlife species, the wildlife
management board;
(d) every aboriginal organization that the
competent minister considers will be
directly affected by the recovery strategy;
and
(e) any other person or organization that
the competent minister considers
appropriate.
39. (1) Dans la mesure du possible, le
ministre compétent élabore le programme
de rétablissement en collaboration avec :
a) le ministre provincial ou territorial
compétent dans la province ou le territoire
où se trouve l’espèce sauvage inscrite;
b) tout ministre fédéral dont relèvent le
territoire domanial ou les autres aires où se
trouve l’espèce;
c) si l’espèce se trouve dans une aire à
l’égard de laquelle un conseil de gestion
des ressources fauniques est habilité par un
accord sur des revendications territoriales à
exercer des attributions à l’égard d’espèces
sauvages, le conseil;
d) toute organisation autochtone qu’il croit
directement touchée par le programme de
rétablissement;
e) toute autre personne ou organisation
qu’il estime compétente.
Page: 43
(2) If the listed wildlife species is found
in an area in respect of which a wildlife
management board is authorized by a land
claims agreement to perform functions in
respect of wildlife species, the recovery
strategy must be prepared, to the extent that
it will apply to that area, in accordance
with the provisions of the agreement.
(3) To the extent possible, the recovery
strategy must be prepared in consultation
with any landowners and other persons
whom the competent minister considers to
be directly affected by the strategy,
including the government of any other
country in which the species is found.
(2) Si l’espèce sauvage inscrite se trouve
dans une aire à l’égard de laquelle un
conseil de gestion des ressources fauniques
est habilité par un accord sur des
revendications territoriales à exercer des
attributions à l’égard d’espèces sauvages, le
programme de rétablissement est élaboré,
dans la mesure où il s’applique à cette aire,
en conformité avec les dispositions de cet
accord.
(3) Le programme de rétablissement est
élaboré, dans la mesure du possible, en
consultation avec les propriétaires fonciers
et les autres personnes que le ministre
compétent croit directement touchés par le
programme, notamment le gouvernement
de tout autre pays où se trouve l’espèce.
42. (1) Subject to subsection (2), the
competent minister must include a
proposed recovery strategy in the public
registry within one year after the wildlife
species is listed, in the case of a wildlife
species listed as an endangered species, and
within two years after the species is listed,
in the case of a wildlife species listed as a
threatened species or an extirpated species.
(2) With respect to wildlife species that
are set out in Schedule 1 on the day section
27 comes into force, the competent
minister must include a proposed recovery
strategy in the public registry within three
years after that day, in the case of a wildlife
species listed as an endangered species, and
within four years after that day, in the case
of a wildlife species listed as a threatened
species or an extirpated species.
42. (1) Sous réserve du paragraphe (2), le
ministre compétent met le projet de
programme de rétablissement dans le
registre dans l’année suivant l’inscription
de l’espèce sauvage comme espèce en voie
de disparition ou dans les deux ans suivant
l’inscription de telle espèce comme espèce
menacée ou disparue du pays.
(2) En ce qui concerne les espèces
sauvages inscrites à l’annexe 1 à l’entrée en
vigueur de l’article 27, le ministre
compétent met le projet de programme de
rétablissement dans le registre dans les
trois ans suivant cette date dans le cas de
l’espèce sauvage inscrite comme espèce en
voie de disparition ou dans les quatre ans
suivant cette date dans le cas de l’espèce
sauvage inscrite comme espèce menacée ou
disparue du pays.
Page: 44
43. (1) Within 60 days after the proposed
recovery strategy is included in the public
registry, any person may file written
comments with the competent minister.
(2) Within 30 days after the expiry of the
period referred to in subsection (1), the
competent minister must consider any
comments received, make any changes to
the proposed recovery strategy that he or
she considers appropriate and finalize the
recovery strategy by including a copy of it
in the public registry.
43. (1) Dans les soixante jours suivant la
mise du projet dans le registre, toute
personne peut déposer par écrit auprès du
ministre compétent des observations
relativement au projet.
(2) Dans les trente jours suivant la fin du
délai prévu au paragraphe (1), le ministre
compétent étudie les observations qui lui
ont été présentées, apporte au projet les
modifications qu’il estime indiquées et met
le texte définitif du programme de
rétablissement dans le registre.
45. (1) The competent minister may at any
time amend the recovery strategy. A copy
of the amendment must be included in the
public registry.
45. (1) Le ministre compétent peut
modifier le programme de rétablissement.
Une copie de la modification est mise dans
le registre.
52. (1) The competent minister may at any
time amend an action plan. A copy of the
amendment must be included in the public
registry
52. (1) Le ministre compétent peut
modifier le plan d’action. Une copie de la
modification est mise dans le registre.
130. (1) COSEWIC must assess the status
of each wildlife species set out in Schedule
2 or 3, and, as part of the assessment,
identify existing and potential threats to the
species and
(a) classify the species as extinct,
extirpated, endangered, threatened or of
special concern;
(b) indicate that COSEWIC does not have
sufficient information to classify the
species; or
(c) indicate that the species is not currently
at risk.
130. (1) Le COSEPAC évalue la situation
de chaque espèce sauvage visée aux
annexes 2 ou 3 ainsi que, dans le cadre de
l’évaluation, signale les menaces réelles ou
potentielles à son égard et établit, selon le
cas :
a) que l’espèce est disparue, disparue du
pays, en voie de disparition, menacée ou
préoccupante;
b) qu’il ne dispose pas de l’information
voulue pour la classifier;
c) que l’espèce n’est pas actuellement en
péril.
Page: 45
(2) In the case of a species set out in
Schedule 2, the assessment must be
completed within 30 days after section 14
comes into force.
(3) If an assessment of a wildlife species
set out in Schedule 2 is not completed
within the required time or, if there has
been an extension, within the extended
time, COSEWIC is deemed to have
classified the species as indicated in
Schedule 2.
(4) In the case of a species set out in
Schedule 3, the assessment must be
completed within one year after the
competent minister requests the
assessment. If there is more than one
competent minister with respect to the
species, they must make the request jointly.
(5) The Governor in Council may, on the
recommendation of the Minister after
consultation with the competent minister or
ministers, by order, extend the time
provided for the assessment of any species
set out in Schedule 2 or 3. The Minister
must include a statement in the public
registry setting out the reasons for the
extension.
(6) Subsections 15(2) and (3) and 21(1)
and section 25 apply with respect to
assessments under subsection (1).
(7) In making its assessment of a wildlife
species, COSEWIC may take into account
and rely on any report on the species that
was prepared in the two-year period before
this Act receives royal assent.
(2) Dans le cas d’une espèce visée à
l’annexe 2, l’évaluation doit être terminée
dans les trente jours suivant l’entrée
vigueur de l’article 14.
(3) Si l’évaluation d’une espèce visée à
l’annexe 2 n’est pas terminée dans le délai
imparti ou prorogé, le COSEPAC est
réputé avoir classifié cette espèce selon ce
qui est indiqué à cette annexe.
(4) Dans le cas d’une espèce visée à
l’annexe 3, l’évaluation doit être terminée
dans l’année suivant la date à laquelle le
ministre compétent en fait la demande. Si
plusieurs ministres compétents sont
responsables de l’espèce, la demande est
présentée conjointement par eux.
(5) Sur recommandation faite par le
ministre après consultation de tout ministre
compétent, le gouverneur en conseil peut,
par décret, proroger le délai prévu pour
l’évaluation d’une espèce visée aux
annexes 2 ou 3. Le ministre met dans le
registre une déclaration énonçant les motifs
de la prorogation.
(6) Les paragraphes 15(2) et (3) et 21(1)
et l’article 25 s’appliquent à l’évaluation
faite au titre du paragraphe (1).
(7) Le COSEPAC peut, pour
l’évaluation d’une espèce sauvage, prendre
en compte et se fonder sur tout rapport
portant sur l’espèce qui a été élaboré dans
les deux ans précédant la sanction de la
présente loi.
Page: 46
132. If a wildlife species is added to the
List by the Governor in Council as the
result of an assessment under section 130,
the recovery strategy for the species must
be prepared within three years after the
listing in the case of an endangered species,
and within four years in the case of a
threatened species.
132. Si l’inscription d’une espèce sauvage
par le gouverneur en conseil découle d’une
évaluation faite par le COSEPAC en
application de l’article 130, le programme
de rétablissement est élaboré dans les trois
ans suivant l’inscription en ce qui concerne
une espèce en voie de disparition et dans
les quatre ans en ce qui concerne une
espèce menacée.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1777-12
STYLE OF CAUSE: WESTERN CANADA WILDERNESS COMMITTEE,
DAVID SUZUKI FOUNDATION, GREENPEACE
CANADA, SIERRA CLUB OF BRITISH COLUMBIA
FOUNDATION, AND WILDSIGHT v MINISTER OF
FISHERIES AND OCEANS AND MINISTER OF THE
ENVIRONMENT
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING: JANUARY 8, 2014 AND JANUARY 9, 2014
REASONS FOR JUDGMENT
AND JUDGMENT: MACTAVISH J.
DATED: FEBRUARY 14, 2014
APPEARANCES:
Sean Nixon
Lara Tessaro
FOR THE APPLICANTS
Brian McLaughlin
Ken Manning
Lisa Nevens
FOR THE RESPONDENTS
SOLICITORS OF RECORD:
EcoJustice Canada
Vancouver, British Columbia
FOR THE APPLICANTS
William F. Pentney
Deputy Attorney General of
Canada
Vancouver, British Columbia
FOR THE RESPONDENTS
