Malaysia Airlines Flight 370 (MH370/MAS370[a]) 2014-04-09.

Malaysia Airlines Flight 370 (MH370/MAS370[a]) was a scheduled international passenger flight from Kuala Lumpur International Airport to Beijing Capital International Airport. The aircraft flying the route, a Boeing 777-200ER, had last been heard from by Subang Air Traffic Control at 01:20 MYT on 8 March 2014 (17:20 UTC, 7 March),[2] less than an hour after takeoff.[b] At 07:24, Malaysia Airlines (MAS) reported the aircraft asmissing.[3] It was carrying 12 Malaysian crew members and 227 passengers from 14 nations.[4]

A multi-national search and rescue effort, later reported as the largest in history,[5] was initiated in the Gulf of Thailand and the South China Sea.[6][7] Within a few days, this was extended to include the Strait of Malaccaand Andaman Sea.[8][9][10] On 15 March, based on military radar data and radio "pings" between the aircraft and an Inmarsat satellite, investigators concluded that it had first headed west across the Malay Peninsula, then continued on a northern or southern track for approximately seven hours.[11][12][13] The search in the South China Sea was abandoned.[14] Three days later the Australian Maritime Safety Authority began searching the southern part of the Indian Ocean.

On 24 March, the Malaysian government confirmed two independently made analyses by the British Air Accidents Investigation Branch (AAIB) and Inmarsat, and concluded "beyond any reasonable doubt", that the aircraft had gone down in the southern part of the Indian Ocean with no survivors. This conclusion led to all earlier search areas being abandoned, with all efforts being concentrated on the Australian-led area.[15][16][17]

Since 22 March, marine debris was recovered on almost a daily basis from the search area in the southern part of the Indian Ocean - but none of it was related to Flight 370;[18][19][20][21][22] and although search vesselADV Ocean Shield detected signals consistent with those emitted by aircraft black boxes on 5 and 8 April, there has been no confirmation of a crash site.[23]

An international team has been established to investigate the incident, following International Civil Aviation Organization (ICAO) protocols.[24][25][26]



Contents [hide]
1 Disappearance
1.1 Timeline of disappearance
1.2 Satellite pings
2 Assumed loss
3 Search
3.1 Hypothesised routes
3.2 Hypothesised locations
3.2.1 First phase
3.2.2 Second phase
3.2.3 Third phase
3.3 International involvement
3.4 Information sharing
3.5 Analysis of satellite communication
4 Aircraft
5 Passengers and crew
5.1 Passengers
5.2 Crew
6 Timeline of events
7 Investigation
7.1 International participation
7.2 Possible passenger involvement
7.3 Crew and cargo
8 Criticism and response
9 See also
10 Notes
11 References
12 External links


Disappearance

Route: Kuala Lumpur – Beijing. Insert: initial search areas and known path through waypointsIGARI, VAMPI, and IGREX. Small red squares: radar contacts. Small circles: claimed spotting of debris.

The flight departed from Kuala Lumpur International Airport on 8 March 2014 at 00:41 local time (16:41 UTC, 7 March) and was scheduled to land at Beijing Capital International Airport at 06:30 local time (22:30 UTC, 7 March). It climbed to its assigned cruise altitude of 35,000 feet (11,000 m) and was travelling at 471 knots (872 km/h; 542 mph)[27] true airspeed when it ceased all communications and the transponder signal was lost. The aircraft's last known position on 8 March at 01:21 local time (17:21 UTC, 7 March) was at the navigational waypoint IGARI in the Gulf of Thailand, at which the aircraft turned westwards, heading towards a waypoint called VAMPI in the Strait of Malacca,[28] primary radar tracking suggests that the aircraft descended as low as 12,000 feet (3,700 m). From there, the aircraft flew towards a waypoint called GIVAL, arriving at 2:15 local time (18:15 UTC, 7 March), thereafter to the Southern Thailand Islands (Andaman Coast) of Phuket, and was last plotted heading northwest towards another waypoint called IGREX.[29][30][31]

The crew was expected to contact air traffic control in Ho Chi Minh City as the aircraft passed into Vietnamese airspace, just north of the point where contact was lost.[32][33] The captain of another aircraft attempted to reach the crew of Flight 370 "just after 1:30 am" using the International distress frequency to relay Vietnamese air traffic control's request for the crew to contact it; the captain said he was able to establish contact, and just heard "mumbling" and static.[34]

Malaysia Airlines (MAS) issued a media statement at 07:24, one hour after the scheduled arrival of the flight at Beijing, stating that contact with the flight had been lost by Malaysian ATC at 02:40.[3] MAS stated that the government had initiated search and rescue operations.[3] It later emerged that Subang Air Traffic Control had lost contact with the aircraft at 01:22 and notified Malaysia Airlines at 02:40. Neither the crew nor the aircraft's onboard communication systems relayed a distress signal, indications of bad weather, or technical problems before the aircraft vanished from radar screens.[35][36]
Timeline of disappearance[edit]
Elapsed (HH:MM)TimeEvent
MYTUTC
00:00 8 March 7 March Take-off from KUL (Kuala Lumpur)
00:41 16:41
00:20 01:01 17:01 Crew confirms altitude of 35,000 feet (11,000 m)[37]
00:26 01:07 17:07 Last ACARS data transmission received;[38] crew confirms altitude of 35,000 feet, a second time[37]
00:38 01:19 17:19 Last Malaysian ATC voice contact[39]
00:40 01:21 17:21 Last secondary radar (transponder) contact at 6°55′15″N 103°34′43″E[40]
00:41 01:22 17:22 Transponder and ADS-B no longer operating.
00:49 01:30 17:30 Voice contact attempt by another aircraft, at request of Vietnam ATC; mumbling and radio static heard in reply[34]
00:56 01:37 17:37 Missed expected half-hourly ACARS data transmission[38]
01:34 02:15 18:15 Last primary radar contact by Malaysian military, 200 miles (320 km) NW of Penang
01:41 02:22 18:22 1st of 6 roughly hourly Classic Aero[41] pings (handshakes) (since last ACARS transmission) via the Inmarsat-3 F1 satellite[42][43]
05:49 06:30 22:30 Missed scheduled arrival at PEK (Beijing)
06:43 07:24 23:24 Malaysia Airlines pronounces flight missing in statement released to media[40]
07:30 08:11 8 March 6th and last successful automated hourly handshake with Inmarsat-3 F1[42][44]
00:11
07:38 08:19 00:19 Unscheduled, unexplained partial handshake transmitted by aircraft[45][46]
08:34 09:15 01:15 Scheduled hourly ping attempt by Inmarsat goes unanswered by aircraft[42]

Satellite pings
On 11 March, New Scientist reported that, prior to the aircraft's disappearance, two Aircraft Communications Addressing and Reporting System (ACARS) reports had been automatically issued to engine manufacturer Rolls-Royce's monitoring centre in the United Kingdom;[47] and The Wall Street Journal, citing sources in the US government, asserted that Rolls-Royce had received an aircraft health report every thirty minutes for five hours, implying that the aircraft had remained aloft for four hours after its transponder went offline.[48][49][50]

The following day, Hishamuddin Hussein, the acting Minister of Transport, refuted the details of The Wall Street Journal report stating that the final engine transmission was received at 01:07 MYT, prior to the flight's disappearance from secondary radar.[50] The WSJlater amended its report and stated simply that the belief of continued flight was "based on analysis of signals sent by the Boeing 777's satellite-communication link... the link operated in a kind of standby mode and sought to establish contact with a satellite or satellites. These transmissions did not include data..."[51][52]

Inmarsat said that "routine, automated signals were registered" on its network,[53] and that analysis of "keep-alive message[s]" that continued to be sent after air traffic control first lost contact could help pinpoint the aircraft's location,[54] which led The Independent to comment on 14 March that the aircraft could not have met with a sudden catastrophic event, or all signals would have stopped simultaneously.[28] There was a call for automated transponders after the attacks of 11 September 2001; however, no changes were made as aviation experts preferred flexible control, in case of malfunctions or electrical emergencies.[55]

On 25 March, Hishamuddin revealed that Inmarsat had found evidence that the aircraft had attempted another handshake with the satellite at 00:19 UTC, eight minutes after the last hourly report. This "partial ping" initiated by the aircraft was unscheduled, not the result of any human interaction, and not yet understood.[56][57]
Assumed loss[edit]

Messages of hope and prayer for MH370 at a bookstore in Malaysia

On 24 March, Malaysian Prime Minister Najib Razak said,


Using a type of analysis never before used in an investigation of this sort... Inmarsat and the AAIB have concluded that MH370 flew along the southern corridor, and that its last position was in the middle of the Indian Ocean, west of Perth. This is a remote location, far from any possible landing sites. It is therefore with deep sadness and regret that I must inform you that, according to this new data, flight MH370 ended in the southern Indian Ocean.[58][c]

Just before Najib spoke at 22:00 MYT, Malaysia Airlines announced that Flight 370 was assumed lost with no survivors. It notified most of the families in person or via telephone, and some received the following SMS:


Malaysia Airlines deeply regrets that we have to assume beyond any reasonable doubt that MH370 has been lost and that none of those on board survived. As you will hear in the next hour from Malaysia's Prime Minister, we must now accept all evidence suggests the plane went down in the Southern Indian Ocean.[61][62][63]

Chinese Deputy Foreign Minister Xie Hangsheng reacted sceptically to the conclusion by demanding "all the relevant information and evidence about the satellite data analysis", and said that the Malaysian government must "finish all the work including search and rescue."[46][64] If the official assumption of no survivors holds, it would be the deadliest aviation incident in the history of Malaysia Airlines (surpassing the 1977 hijacking and crash of Malaysian Airline System Flight 653 that killed all 100 passengers and crew on board) and the deadliest to date involving a Boeing 777, surpassing Asiana Airlines Flight 214. It would also be the second-deadliest incident in the Indian Ocean, behind Iran Air Flight 655[65], and the 17th-deadliest incident of all time.

British satellite company Inmarsat had provided officials (or its partner, SITA) with data on 11 March, three days after the aircraft disappeared, suggesting the aircraft was nowhere near the areas in the Gulf of Thailand and the South China Sea being searched at that time; and may have diverted its course through a southern or northern corridor, information only publicly acknowledged and released by Najib on 15 March in a press conference.[43][66] Criticism was also levelled at the delay of the search efforts. Explaining why information about satellite signals had not been made available earlier, Malaysia Airlines said that the raw satellite signals needed to be verified and analysed "so that their significance could be properly understood" before it could publicly confirm their existence.[67]Hishammuddin said Malaysian and US investigators had immediately discussed the Inmarsat data upon receiving them on 12 March, and on two occasions, both groups agreed that it needed further processing and sent the data to the US twice for this purpose. Their analysis was completed on 14 March, by then, the AAIB independently arrived at the same conclusion.[68]

On 29 March, the Government of Malaysia and the AAIB stated that, in accordance with the protocols detailed in International Civil Aviation Organization (ICAO) Annex 13 concerning aircraft accident investigation, they would set up an international team to investigate the loss of the flight.[24][25] On 30 March, Australian Prime Minister Tony Abbott announced the appointment of retired Australian Air Chief Marshal Angus Houston to head the Joint Agency Coordination Centre (JACC) to co-ordinate the search effort and closely co-operate with Malaysia, whose government is responsible under international law.[69][70]

Hypothesised routes

Search for aircraft. Pink circle: Range of aircraft based on fuel (5,300 km). Ping corridors: possible locations (in red) of aircraft at last ping to Inmarsat and possible last location (lighter red) based on residual fuel. Search areas: 1) 8–20 March, 2) 20–27 March, 3) 28 March.

On 11 March, it was reported that military radar indicated the aircraft turned west away from the intended flight path and continued flying for 70 minutes before disappearing off the Malaysian radar nearPulau Perak.[71][72] It was also reported that it had been tracked flying at a lower altitude across Malaysia to the Malacca Strait. This location was approximately 500 kilometres (310 mi) from its last contact with civilian radar.[73] The next day, the Royal Malaysian Air Force chief denied the report.[74][75] A Vietnamese transport minister said Malaysia was informed on the day that they "noticed the flight turned back west but Malaysia did not respond."[76]

An American radar expert, assigned to assist with the investigation, analysed the radar data and subsequently reported that the radar data did indeed indicate that the aircraft had headed west back across the Malay Peninsula.[77] The New York Times reported that the aircraft experienced significant changes in altitude.[52][78]

Although Bloomberg News said that analysis of the last satellite "ping" received suggested a last known location approximately 1,000 miles (1,600 km) west of Perth, Western Australia,[79] the Malaysian Prime Minister Najib Razak on 15 March said that the last signal, received at 08:11 Malaysian time, might have originated from as far north as Kazakhstan.[80] Najib explained that the signals could not be more precisely located than to one of two possible loci: a northern locus stretching approximately from the border of Kazakhstan and Turkmenistan to northern Thailand, or a southern locus stretching fromIndonesia to the southern Indian Ocean.[81] Many of the countries on a possible northerly flight route – China, Thailand, Kazakhstan, Pakistan, and India – denied the aircraft could have entered their country's airspace, because military radar would have detected it.[82]

Although it was later confirmed that the last ACARS transmission showed nothing unusual and a normal routing all the way to Beijing,[83] The New York Times reported "senior American officials" saying on 17 March that the scheduled flight path was pre-programmed to unspecified western coordinates through the flight management system before the ACARS stopped functioning,[84] and a new waypoint "far off the path to Beijing" was added.[84] Such a reprogramming would have resulted in a banked turn at a comfortable angle of around 20 degrees that would not have caused undue concern for passengers. The sudden cessation of all on-board communication led to speculation that the aircraft's disappearance may have been due to foul play.[84]
Hypothesised locations
[show]Map of all coordinates from Google
Map of up to 200 coordinates from Bing


As the available data analyses of the flight were refined, the foci of search operations changed to different areas in three distinct phases.
First phase

An admiral of the Vietnamese navy reported that radar contact with the aircraft was last made over the Gulf of Thailand.[35][85] Oil slicks detected off the coast of Vietnam on 8 and 9 March later tested negative for aviation fuel.[86][87] Alleged discovery of debris about 140 km (87 mi) south-west of Phú Quốc Island near 80 km (50 mi) south of Thổ Chu Island on 9 March was also found to be not from an aircraft.[88] Searches following a Chinese website's satellite images, taken on 9 March, showing three floating objects measuring up to 24 × 22 metres (79 × 72 ft) at 6.7°N 105.63°E also turned up blank;[89][90] Vietnamese officials said the area had been "searched thoroughly".[91][92]

The Royal Thai Navy shifted its focus in the search away from the Gulf of Thailand and the South China Sea at the request of its Malaysian counterpart, which was investigating the possibility that the aircraft had turned around and could have gone down in theAndaman Sea, near Thailand's border.[93] The chief of the Royal Malaysian Air Force, Rodzali Daud, claimed that military recordings of radar signals did not exclude the possibility of the aircraft turning back on its flight path.[94][95] The search radius was increased from the original 20 nautical miles (37 km; 23 mi) from its last known position,[96] south of Thổ Chu Island, to 100 nautical miles (190 km; 120 mi), and the area being examined then extended to the Strait of Malacca along the west coast of the Malay Peninsula, with waters both to the east of Malaysia in the Gulf of Thailand, and in the Strait of Malacca along Malaysia's west coast, being searched.[7][97][98]

On 12 March, authorities also began to search the Andaman Sea, northwest of the Strait of Malacca, and the Malaysian government requested help from India to search in the area.[99]
Second phase

On 13 March, White House Press Secretary Jay Carney said "an additional search area may be opened in the Indian Ocean based on some new information"[48][100] and a senior official at The Pentagon told ABC News: "We have an indication the plane went down in the Indian Ocean."[101] On 17 March, Australia agreed to lead the search in the southern locus from Sumatra to the southern Indian Ocean.[102][103] The search would be coordinated by the Australian Maritime Safety Authority (AMSA), with an area of 600,000 km2(230,000 sq mi) between Australia and the Kerguelen Islands lying more than 3,000 kilometres (1,900 mi) Southwest of Perth, to be searched by ships and aircraft of Australia, New Zealand, and the United States.[104] This area, which Australian PM Tony Abbottdescribed as "as close to nowhere as it's possible to be", is renowned for its strong winds, inhospitable climate, hostile seas, and deep ocean floors.[105][106] On 18 March, the search of the area began with a single Royal Australian Air Force P-3 Orion aircraft.[107] On 19 March, the search capacity was ramped up to three aircraft and three merchant ships;[108] the revised search area of 305,000 square kilometres (118,000 sq mi) is about 2,600 kilometres (1,600 mi) south-west of Perth.[109]

Search efforts intensified on 20 March, after large pieces of possible debris had been photographed in this area four days earlier by a satellite.[110][111][112][113][114] Australian, US, China, Japan, New Zealand, and South Korea all tasked military and civilian assets to the area.[115][116] China published images from satellite Gaofen 1 on 22 March that showed large debris about 120 km (75 mi) south west of the previous sighting;[18][19][20] On 26 March, images from French satellites indicated 122 floating objects in the southern Indian Ocean[21][117] Thai satellite images published on 27 March showed about 300 floating objects about 200 km (120 mi) from the French satellite's target area.[118] The abundant finds, none yet confirmed to be from the flight, brought the realisation of the prior lack of surveillance over the area, and the vast amounts of marine debris littering the oceans.[119][120]
Third phase

Deployment of a towed pinger locator

Revised estimates of the radar track and the aircraft's remaining fuel led to a move of the search 1,100 kilometres (680 mi) north-east of the previous area on 28 March,[22][121] to a new search area of 319,000 square kilometres (123,000 sq mi), roughly 1,850 kilometres (1,150 mi) west of Perth.[122][123][124] This search area has more hospitable weather conditions.[125]

On 30 March, four large orange-coloured objects found by search aircraft described by media as "the so far most promising lead" turned out to be fishing equipment.[126] On 2 April, the centre of the search area was shifted again 456 kilometres (283 mi) east, to a position 1,504 kilometres (935 mi) west of Perth.[127] The same day, Royal Navy and survey vessel HMS Echo and submarine HMS Tireless arrived in the area,[128] with the latter starting immediately to search for the aircraft's underwater locator beacons fitted to the "black box" flight recorders,[129] the batteries of which were expected to expire around 7 April.[130][131]

On 4 April, the search was refocused to three more northerly areas from 1,060 to 2,100 kilometres (660 to 1,300 mi) west of Learmonth, spanning over 217,000 square kilometres (84,000 sq mi).[132][133] ADV Ocean Shieldfitted with a TPL-25 towed pinger locator, together with HMS Echo – which carried a "similar device", began searching for pings along a 240 kilometres (150 mi) seabed line believed to be the Flight 370 impact area.[130][134][135]Operators considered it a shot in the dark,[136] when comparing the vast search area with the fact that TPL-25 can only search up to 50 square miles (130 km2) per day. Ocean Shield was also carrying a US Navy Bluefin-21unmanned underwater vehicle for searching the seabed by side-scan sonar, but using this technique is roughly three times slower than a TPL-25.[136]

On 5 April, Chinese media announced an unconfirmed report that Haixun 01 had picked up two short episodes of pulsing 37.5 kHz signals through a handheld hydrophone, at about 25°S 101°E, one on 4 April, and another the day after at 15:36 MYT.[137][138][139][140][141] The following day the Joint Agency Coordination Centre (JACC) ordered HMS Echo to the area, to attempt verification with more advanced equipment.[142]

On 6 April, JACC made an initial announcement that Ocean Shield had also picked up a signal, about 300 nautical miles (560 km; 350 mi) from Haixun 01.[143][142] It was announced the next day that the TPL-25 pinger locator towed by Ocean Shield had picked up a signal twice on 6 April.[144][145] The first, in the morning of 6 April at approximately 300 metres (980 ft) depth, lasted 2 hours and 20 minutes; the second episode took place at approximately 3,000 metres (9,800 ft) depth, and lasted 13 minutes. During the second episode, two distinct pinger returns were audible. Both episodes of recorded signals, which took place at roughly the same position (within a 800–2000 yards' distance), were considered to be consistent with the signals emitted by the beacons attached to an aircraft's black boxes under water.[146] The Ocean Shield events were recorded at the northern border of a newly-calculated impact area that was announced on 7 April, while the Haixun 01 events had been recorded at its southern border.[146][147] ADV Ocean Shield detected two more signals in the afternoon and evening on 8 April.[148]The first signal was received for five minutes and 32 seconds, and the second for around seven minutes.[149]
International involvement





Wikimedia Commons has media related to Search of Malaysia Airlines Flight 370.


In response to the incident, the Malaysian government mobilised its civil aviation department, air force, navy, and Maritime Enforcement Agency; and requested international assistance under Five Power Defence Arrangementsprovisions and from neighbouring states. Various nations mounted a search and rescue mission in the region's waters.[150][151] Within two days, the countries had already dispatched more than 34 aircraft and 40 ships to the area.[7][8][98] The Comprehensive Nuclear-Test-Ban Treaty Organization Preparatory Commission analysed information from its network of infrasound detection stations, but failed to find any sounds made by Flight 370.[152]

On 11 March, the China Meteorological Administration[153] activated the International Charter on Space and Major Disasters, a 15 member organisation whose purpose is to "...provide a unified system of space data acquisition and delivery to those affected by natural or man-made disasters,"[154] the first time the charitable and humanitarian redeployment of the assorted corporate, national space agency, and international satellite assets under its aegis had been used to search for an airliner.[155]

Another 11 countries joined the search efforts by 17 March, after more assistance was requested by Malaysia, bringing the total to 26.[11] While not participating in the search itself, Sri Lanka gave permission for search aircraft to use its airspace.[156] Assets deployed by Malaysia included military fixed-wing aircraft and helicopters,[157] and vessels from the navy and Malaysian Maritime Enforcement Agency.[157][158][159] A co-ordination centre at the National Disaster Control Centre (NDCC) in Pulau Meranti, Cyberjaya was established.[160]

The United Kingdom is providing technical assistance from the Ministry of Defence, the Hydrographic Office, Department for Transport and the Met Office; and personnel from the RAF.[161]

Other nations provided the following assets:
Australia: air force Lockheed P-3C Orion maritime patrol aircraft;[162] navy ships HMAS Success and ADV Ocean Shield,[163] and four long-range civilian jets.[164][165][166]
Bangladesh: navy frigates BNS Bangabandhu and BNS Umar Farooq; navy Dornier Do 228 maritime patrol aircraft.[167]
Brunei: Darussalam-class offshore patrol vessel.[168]
Cambodia: Harbin Z-9 helicopters and P46-type navy ships.[169]
China (PRC): Type 053H3 frigate Mianyang, marine police vessel No. 3411,[170] Type 054A frigate Changzhou,[171] Type 052C destroyer Haikou,[172] Changchun,[171] Type 071 amphibious transport dock JinggangShan,KunlunShan, patrol ship Haixun 31, Type 925 submarine support ship Yongxingdao,[172] research vessel Xuelong, rescue ship Haixun 01, and merchant ships,[173] rescue vessel Nanhaijiu 101,[174] Nanhaijiu 115, Donghaijiu 101,[175][176] Type 903 replenishment ship Qiandaohu,[174] Chaohu.[171] Several military satellites retasked,[177] Two Ilyushin Il-76s[178][179][180][176]
France: a team from the Bureau d'Enquêtes et d'Analyses pour la Sécurité de l'Aviation Civile (BEA).[181] The satellites Spot-5, Spot-6, Pleiades 1A and 1B, whose data are analysed by the teams of the Minister of Defence.[182]
India: surface and airborne assets from the Andaman and Nicobar Command and Eastern Naval Command: navy ships INS Satpura, INS Sahyadri, INS Saryu, INS Batti Malv, INS Kesari and INS Kumbhir; coast guard vesselsICGS Kanaklata Baruah, ICGS Bhikaji Cama and ICGS Sagar;[183] navy Boeing P-8 maritime surveillance aircraft;[184] navy and coast guard Dornier Do 228s;[185] air force Lockheed C-130 Hercules[185] and Mil Mi-17.[186]Rukmini naval satellite.[186]
Indonesia: corvette KRI Sutanto, patrol boat KRI Siribua and fast patrol vessels KRI Matacora, KRI Tarihu and KRI Krait;[187][188] IPTN NC-212 maritime patrol aircraft.[189]
Japan: naval defence force Lockheed P-3 Orion and air defence force C-130 Hercules aircraft;[190][191] coast guard Gulfstream V;[192] and a disaster relief team.[193]
Myanmar: naval vessels in Gulf of Martaban and the Bay of Bengal.[194]
New Zealand: air force P-3 surveillance Orion.[195][196]
Norway: a Norwegian RoRo merchant ship, the Höegh St. Petersburg.[197]
Philippines: navy ships BRP Gregorio del Pilar, BRP Emilio Jacinto and BRP Apolinario Mabini; air force Fokker F27 and navy Britten-Norman Defender aircraft; and navy AgustaWestland AW109 helicopter. A Hamilton-class cutter vessel and a C-130 Hercules on standby.[198]
Russia: Resurs-P No.1 satellite.[199]
Singapore: in South China Sea/Malacca Strait: air force C-130 Hercules;[200][201] navy Formidable-class frigate with one Sikorsky S-70B Seahawk helicopter; a submarine rescue ship with divers; Victory-class corvette;[202]an air force Fokker 50 maritime patrol aircraft.[203] In the Indian Ocean, all previously-deployed ships and aircraft were stood down and instead the armed forces' Information Fusion Centre was activated.[204][205]
South Korea: navy P-3 Orion and air force C-130 Hercules aircraft.[206]
Taiwan (ROC): air force C-130 Hercules; ROCS Tian Dan and a La Fayette-class frigate; two coast guard patrol vessels.[207]
Thailand: Dornier Do 228, AgustaWestland Super Lynx helicopter and patrol ship HTMS Pattani. Other ships on standby.[208]
United Arab Emirates: two military search and rescue aircraft.[209][210]
United Kingdom: a team of Air Accidents Investigation Branch (AAIB) investigators,[211] hydrographic survey ship HMS Echo,[212] and nuclear submarine HMS Tireless.[213][214]
United States: Towed Pinger Locator 25, navy P-3 Orion and Boeing P-8[215] aircraft; Navy ships USS Kidd and USS Pinckney with Sikorsky MH-60R Seahawk helicopters;[216][217][218] a National Transportation Safety Board (NTSB) team.[219]
Vietnam: Antonov An-26, de Havilland Canada DHC-6 Twin Otter, Mil Mi-171, and ships from the navy, coast guard, fisheries control, and Maritime Search & Rescue Coordination Centre.[220]

As of 30 March, the following seven countries had employed assets to the Australian-led search area: Australia, China, Japan, Malaysia, New Zealand, South Korea, and the United States.[221] On 2 April, the United Kingdom also joined the search operation.[131][128]
Information sharing

Although Malaysia's acting Transport Minister Hishammuddin Hussein, who is also the country's Defence Minister, denied the existence of problems between the participating countries, academics said that because of regional conflicts, there were genuine trust issues involved in co-operation and sharing intelligence, and that these were hampering the search.[222][223] International relations experts said entrenched rivalries over sovereignty, security, intelligence, and national interests made meaningful multilateral co-operation very difficult.[222][223] A Chinese academic made the observation that the parties were searching independently, thus it was not a multilateral search effort.[223]

Malaysia had initially declined to release raw data from its military radar, deeming the information "too sensitive", but later acceded.[222][223] Defence experts say that giving others access to radar information may be sensitive on a military level. As an example: "The rate at which they can take the picture can also reveal how good the radar system is."[222] One suggested that some countries may already have had radar data on the aircraft and were reluctant to share any information that could potentially reveal their defence capabilities and compromise their own security.[222] Similarly, submarines patrolling the South China Sea might have information in the event of a water impact, and sharing such information could reveal the subs' locations and listening capabilities. The Guardiannoted the Vietnamese permission given for Chinese aircraft to overfly its airspace as a positive sign of co-operation.[223]

Satellite imagery is also being made available by Tomnod for the public to help with the search through crowdsourcing.[224]
Analysis of satellite communicatio

The datalink for Malaysia Airline's avionics communications is supplied by SITA, which contracted with Inmarsat to provide a satellite communication link using Inmarsat's Classic Aero service.[43][225] The aircraft's satellite communication (SATCOM) system is used to transmit messages from the cockpit as well as automated messages from on-board systems using the ACARS communications protocol, but may also be used to transmit FANS & ATN messages and provide voice, fax and data links[41] using other protocols.[43][225][226] The SATCOM signals from the aircraft are picked up by Inmarsat's constellation of satellites and relayed to ground stations.[42] In the absence of a signal from a terminal, the ground station will transmit hourly 'log on/log off' messages – informally referred to as a 'ping' – to the terminal; an active terminal automatically responds. The entire process is referred to as a 'handshake'.[42][227] After ACARS equipment on the aircraft was disabled, the SATCOM transceiver aboard Flight 370 completed six handshakes; the final complete handshake occurring at 00:11 UTC on 8 March (08:11 MYT).[42][227]

Although the ACARS system on Flight 370 was disabled at 01:21 MYT (17:21 UTC, 7 March), the SATCOM terminal remained operable.[43] On 8 March, Inmarsat provided basic flight data relating to Flight 370 to SITA, who relayed information to Malaysia Airlines and investigators.[228] On 9–10 March, Inmarsat engineers noted that the ground station log recorded pings from the aircraft for several hours after contact was lost with air traffic control.[228] An analysis of the time difference between the transmission of the ping and the aircraft's response allowed Inmarsat to determine the aircraft's distance from the satellite, resulting in the plotting of two arcs—referred to as the 'Northern Corridor' and 'Southern Corridor' where the aircraft may have been located at the time of its last complete handshake at 00:11 UTC.

Inmarsat conducted further analysis on the signals received during the handshakes, focusing on the frequency shift of the signal emitted from the aircraft compared with the actual frequency received, known as the burst frequency offset,[42][227] using a baseline of earlier system data for the aircraft, satellite, and ground station.[227] The burst frequency offset, caused by the Doppler effect, varies based on the aircraft's speed and whether it is moving towards or away from the satellite. Using an "innovative technique"[227] that has "never before [been] used in an investigation of this sort",[229] the team determined they could also use the burst frequency offset to determine the aircraft's speed and position along the identified arcs. Inmarsat cross-checked their methodology to known flight data from six Boeing 777 aircraft flying in various directions on the same day, and found a good match.[42] Applying the technique to the handshake signals from Flight 370 gave results that correlated strongly with the expected and actual measurements of a southern trajectory over the Indian Ocean, but poorly with a northern trajectory.[42][227] Further revised calculations to account for movements of the satellite relative to the earth, allowed the northern corridor to be ruled out completely. This analysis was passed on to Malaysian authorities on 23 March.[43] At 22:00 local time the next day, Prime Minister Najib cited this development to conclude that "Flight MH370 ended in the southern Indian Ocean."[43][230]

In addition to the six completed handshakes between Flight 370 and the ground station after ACARS stopped sending messages, there is "evidence of a partial handshake" at 00:19 UTC which was not immediately well understood and is subject to further investigation.[42][227] Since the aircraft did not respond to a ping at 01:15 UTC, it was concluded that at some point between 00:11 UTC and 01:15 UTC, the aircraft lost the ability to communicate with the ground station,[42][227][228] which Malaysia's Department of Civil Aviation noted was "consistent with the maximum endurance of the aircraft".[227] Of note, the SATCOM terminal on an aircraft requires power from the aircraft to operate.[228]

Malaysian investigators set up an international working group, consisting of various agencies with experience in aircraft performance and satellite communications, to further analyse the signals between Flight 370 and the ground station, especially the signal at 00:19 UTC.[227] These included representatives from the UK's Inmarsat, AAIB and Rolls-Royce; China's Civil Aviation Administration and Aircraft Accident Investigation Department; the US NTSB and FAA, and Malaysian authorities.[231] Also on 7 April, JACC announced that the Malaysian technical investigation team indicated that the partial ping from Flight 370 at 08:19 MYT was most likely when it impacted with the water. Together with further refinement of the satellite data calculation, the investigation team hypothesised a reduced search area.[146][147]
Aircraft[


Wikimedia Commons has media related to aircraft 9M-MRO.


Flight 370 was operated with a Boeing 777-2H6ER,[d] serial number 28420, registration 9M-MRO. The 404th Boeing 777 produced,[233] it first flew on 14 May 2002, and was delivered new to Malaysia Airlines on 31 May 2002. The aircraft was powered by two Rolls-Royce Trent 892 engines,[233] and was configured to carry 282 passengers – 35 in business class and 247 in economy.[234] 9M-MRO had accumulated 53,460 hours and 7,525 cycles in service,[235] and had not previously been involved in any major incidents,[236] though a minor incident while taxiing at Shanghai Pudong International Airport in August 2012 resulted in a broken wingtip.[237][238] Its lastmaintenance 'A' check was carried out on 23 February 2014.[235]

The Boeing 777, introduced in 1994, is generally regarded by aviation experts as having an "almost flawless" safety record,[239] one of the best of any commercial aircraft.[240] Since its first commercial flight in June 1995, there have been only three other serious accidents involving hull-loss: British Airways Flight 38 in 2008; a cockpit fire in a parked Egyptair 777-200 at Cairo International Airport in 2011;[241][242] and Asiana Airlines Flight 214 in 2013, in which three people died.
Passengers and crew
People on board by nationalityNationalityNo. Australia 6
Canada 2
China 152
France 4
Hong Kong[e] 1
India 5
Indonesia 7
Iran[f] 2
Malaysia[g] 50
Netherlands 1
New Zealand 2
Russia 1
Taiwan 1
Ukraine 2
United States 3
Total 239


Malaysia Airlines released the names and nationalities of the 227 passengers and 12 crew members, based on the flight manifest, later modified to include two Iranian passengers travelling on stolen passports.[245]
Passengers

Two-thirds of the 227 passengers were Chinese citizens, including a group of 19 artists with six family members and four staff returning from a calligraphy exhibition of their work in Kuala Lumpur; 38 passengers were Malaysian. The remaining passengers were from 13 different countries.[246] Of the total, 20 were employees of Freescale Semiconductor, a company based in Austin, Texas – 12 of whom were from Malaysia and 8 from China.[247][248] One passenger who worked as a flight engineer for a Swiss jet charter company was briefly suspected as potential hijacker because he was thought to have the relevant skill set.[249]

Under a 2007 agreement with Malaysia Airlines, Tzu Chi – an international Buddhist organisation – immediately sent specially trained teams to Beijing and Malaysia to give emotional support to passengers' families.[250][251] The airline also sent its own team of caregivers and volunteers[252] and agreed to bear the expenses of bringing family members of the passengers to Kuala Lumpur and providing them with accommodation, medical care, and counselling.[253]Altogether, 115 family members of the Chinese passengers flew to Kuala Lumpur.[254] Some other family members chose to remain in China, fearing they would feel too isolated in Malaysia.[255] The airline's offer of an ex gratiacondolence payment of US$5,000 to the family of each passenger was initially rejected;[256][257] the amounts were handed out to relatives on 12 March. It was also reported that Malaysian relatives only received $2,000.[258]
Crew

All the 12 crew members were Malaysian citizens. The flight's captain was 53-year-old Zaharie Ahmad Shah from Penang; he joined MAS in 1981 and had 18,365 hours of flying experience.[259] Zaharie was also an examiner qualified to conduct simulator tests for pilots.[260]

The first officer was 27-year-old Fariq Abdul Hamid, an employee of MAS since 2007, with 2,763 flying hours.[261][262] This was Fariq's first flight as a fully qualified B-777 first officer, following the completion of his supervised transition to that aircraft.[262]

Timeline of events

Date (UTC)CategoryEvent7 March Media Department of Civil Aviation (DCA) Malaysia and Malaysia Airlines confirms Subang Air Traffic Control outside Kuala Lumpur lost contact with Malaysia Airlines Flight MH 370 on 8 March 2014 at 02:40 local time (on 7 March 2014 at 18:40 UTC), later corrected to 01:30 local time (17:30 UTC) located at 6°33′05″N 103°20′39″E[263]
Search Malaysian and Vietnamese authorities jointly searching in the Gulf of Thailand area; China dispatches two maritime rescue ships to the South China Sea.[264]
8 March Search An international search and rescue mission mobilised, focusing on Gulf of Thailand. Natuna Islands archipelago and South China Sea. Malaysia, Vietnam, China, Singapore and Indonesia.
Media Malaysia Airlines releases passenger manifest of Malaysia Airlines Flight MH370.[265]
Two men from Austria and Italy, listed among the passengers on MH370, are not in fact on board. Officials in both countries say that they had had their passport stolen.[266]
9 March Search The search zone expanded, to include areas in the Strait of Malacca as military radar tracking indicates aircraft might have turned west from its flight plan and flight path.[267]
Investigation INTERPOL confirms that at least two passengers are found to have been travelling on stolen passports registered in its databases.[268]
10 March Search Ten Chinese satellites deployed in the search. Oil slicks on the surface of the South China Sea test negative for jet fuel.
Media Malaysia Airlines announces it will give US$5,000 to the relatives of each passenger.
11 March Investigation INTERPOL says that two false identities are not linked to the disappearance.[269]
Media China activates the International Charter on Space and Major Disasters.
12 March Search Chinese satellite images of possible debris from Flight 370 in the South China Sea at 6.7°N 105.63°E released, but surface search finds no wreckage.[90] Malaysian government receives Inmarsat info that Flight 370 pinged for hours after ACARS went off-line.
Media Chinese government criticises Malaysia for inadequate answers regarding Flight 370.
Investigation Royal Malaysian Air Force chief says that an aircraft plotted on military radar crossed the Malaysian states of Pahang, Terengganu, Selangor, Perak and Penang after changing course, towards a waypoint called GIVAL at 2:15 local time (18:15 UTC, 7 March), 200 miles (320 km) northwest of Penang Island off Malaysia's west coast. It followed standard aviation corridors. Search and rescue efforts being stepped up in Andaman Sea and Bay of Bengal.[270][271]
14 March Investigation Investigation concludes that Flight 370 was still under human control after it lost ground control contact.
Media MAS retires the MH370/MH371 flight number pair.[272]
15 March Search New phase of multi-national search and rescue operations within two areas in the northern and southern "corridors". Twenty-six countries involved, among the northern corridor countries are Kazakhstan, Turkmenistan, China, Thailand, including South China Sea and Gulf of Thailand. The southern corridor covers Indonesia, Australia, and the Indian Ocean.[273][274]
India continues search for Malaysia Airlines MH370; Malaysia ends hunt in South China Sea.[14]
Investigation Malaysian police search the homes of both of the aircraft's pilots.
CTBTO analysts report no clues found from seismic shocks and sound wave monitoring around the world.[275]
16 March Search Twenty-five countries are involved in the search. India ends its search in the Andaman Sea and Bay of Bengal.[276]
17 March Search Search area reported by Malaysian authorities to be 2,000,000 square miles (5,200,000 km2), as a belt beneath the last possible arc position stretching from Kazakhstan over Indonesia to the southern part of the Indian Ocean.[273] Australia pledges to lead a search from Sumatra to the southern Indian Ocean.[277]
18 March Search China starts a search operation in its own territory. Australia conducts an aerial search through waters West and North of Cocos Islands and Christmas Island (close to Indonesia). Australia also conducts its first aerial search of the southern Indian Ocean,[107] roughly 3,000 kilometres (1,900 mi) South-west of Perth.[106]
19 March Search Australia searches the southern Indian Ocean with three aircraft and three merchant ships,[108] transiting through a slightly revised search area of 305,000 square kilometres (118,000 sq mi) about 2,600 kilometres (1,600 mi) South-west of Perth.[109]
20 March Search Prime minister of Australia, Tony Abbott, told parliament that the "new and credible information" had emerged from expert analysis of satellite imagery.[278] Five aircraft and a fourth (merchant) ship are dispatched to 44°03′02″S 91°13′27″E.[110]
22 March Search Chinese satellite image taken on 18 March shows a possible object measuring 22.5 by 13 metres (74 by 43 ft) at 44°57′30″S 90°13′40″E, approximately 3,170 kilometres (1,970 mi) west of Perth and 120 kilometres (75 mi) from the earlier sighting, but did not confirm the object's nature.
24 March Media Prime Minister of Malaysia announces that Flight 370 is assumed to have gone down in the southern Indian Ocean; Malaysia Airlines states to families that it assumes "beyond reasonable doubt" there are no survivors.[279]
Search Search area narrowed to the southern part of the Indian Ocean west and southwest of Australia. The northern search corridor (northwest of Malaysia) and the northern half of the southern search corridor (the waters between Indonesia and Australia) are definitively ruled out. An Australian search aircraft spots two objects at sea, 1,550 miles (2,490 km) southwest of Perth.[280]
26 March Search French satellite images captured on 23 March show 122 possible pieces of debris[21] at 44°41′24″S 90°25′19.20″E, 44°41′38.45″S 90°29′31.20″E and 44°40′10.20″S 90°36′25.20″E.[281]
Media UK Air Accidents Investigation Branch (AAIB) has a team of investigators from other states as part of an international effort supporting the Malaysian authorities in accordance with the International Civil Aviation Organization (ICAO) code.[282][283]
27 March Search The search area narrows to roughly 76,000 square kilometres (29,000 sq mi). Thai satellite images, captured on 24 March by Thaichote, show 300 floating objects about 200 kilometres (120 mi) south of the area depicted in the previous French images.[118] Japanese satellite images, captured on 26 March, show 10 square floating objects, also about 200 kilometres (120 mi) south of the area depicted in the French images. Five ships from Australia and China are actively engaged.
28 March Search Search shifts to a new 319,000-square-kilometre (123,000 sq mi) area 1,100 kilometres (680 mi) northeast of the previous search area.[122][123]
29 March Media Malaysia announces that an international panel will be formed under United Nations protocols to investigate the MH370 incident.[284]
30 March Media Prime Minister of Australia announces newly formed Joint Agency Coordination Centre (JACC) headed by Angus Houston.[285] Military air crew from Australia, China, Japan, Malaysia, New Zealand, South Korea, and the United States are actively engaged.[286]
5 April Search Chinese patrol ship Haixun 01 detects a pulse signal at 25°S 101°E.[138][139][287][140] Ocean Shield also picks up two longer lasting signals. [288] [23]
8 April Search Ocean Shield picks up two further signals 3,500 metres deep, close to those of 5 April.[289][23]

Investigation
International participation

On 8 March, although formal (ICAO-sanctioned) investigation had not yet started, Boeing announced that it was assembling a team of experts to provide technical assistance to investigators,[290] in accordance with International Civil Aviation Organization (ICAO) protocols. The United States National Transportation Safety Board (NTSB) soon thereafter announced it was sending its own team of investigators with technical advisers from the Federal Aviation Administration (FAA).[219][291]

The United States Federal Bureau of Investigation (FBI) had already deployed technical experts and agents to investigate the disappearance.[292] A senior US law enforcement official clarified that FBI agents had not been sent to Malaysia.[293] By 17 March the investigation was also being assisted by Interpol and other relevant international law enforcement authorities according to the Malaysian government.[294][295]

On 6 April Malaysia announced it has set up three ministerial committees to help co-ordinate the search, and a new investigation team including members from Australia, China, the US, the UK, and France,[296] being led according to the ICAO standards by "an independent investigator in charge".[26] The investigation into the plane's disappearance is Malaysia's responsibility; Australia is co-ordinating the ocean search. Australia, the US, UK, and China have agreed to be "accredited representatives" of the investigation.[297]
Possible passenger involvement[edit]

Two men identified on the manifest, an Austrian and an Italian, had reported their passports stolen in 2012 and 2013, respectively.[35][298] Interpol stated that both passports were listed on its database of lost and stolen passports, and that no check had been made against its database.[299][300] Malaysia's Home Minister, Ahmad Zahid Hamidi, criticised his country's immigration officials for failing to stop the passengers travelling on the stolen European passports.[300] The two one-way tickets purchased for the holders of the stolen passports were booked through China Southern Airlines.[301] It was reported that an Iranian had ordered the cheapest tickets to Europe via telephone in Bangkok, Thailand. The tickets were paid for in cash.[302][303] The two passengers were later identified as Iranian men, one aged 19 and the other 29, who had entered Malaysia on 28 February using valid Iranian passports. The head of Interpol said the organisation was "inclined to conclude that it was not a terrorist incident".[244] The two men were believed to be asylum seekers.[304][305] United States and Malaysian officials were reviewing the backgrounds of every passenger named on the manifest.[306] On 18 March the Chinese government announced that it had checked all of the Chinese citizens on the aircraft and ruled out the possibility that any were potential hijackers.[307]
Crew and cargo
Police searched the homes of the pilot and co-pilot,[308] on suspicion that those in the cockpit had been responsible for the aircraft's disappearance.[309] However, no evidence had emerged to support this theory. After the FBI reconstructed the deleted data from the pilot's home flight simulator, the Malaysian government spokesman indicated that "nothing sinister" had been found on it.[310][311]

MAS has not disclosed its cargo manifest, as Malaysian police are conducting their own investigations.[312][313] On 17 March, Malaysia Airlines chief executive, Ahmad Jauhari Yahya, indicated only that the aircraft was carrying 3 to 4 tonnes/tons of mangosteens and said that nothing it transported was dangerous.[312][314][315] Three days later, he also confirmed that potentially flammable batteries, identified as lithium-ion,[316] were on board, adding that all cargo was "packed as recommended by the ICAO", checked several times, and deemed to meet regulations.[317][318][319]

On 2 April Khalid Abu Bakar, Malaysia's Police Inspector-General, said that as part of its ongoing criminal investigation, more than 170 interviews had been conducted, including with family members of the pilots and crew.[320][321] Khalid said that the provenance and destination of all cargo, including the mangosteens and in-flight meals, were being investigated to rule out sabotage as a cause.[322]
Criticism and response
Public communication from Malaysian officials regarding the loss of the flight was initially beset with confusion.[h] The New York Times wrote that the Malaysian government and the airline released imprecise, incomplete, and sometimes inaccurate information, with civilian officials sometimes contradicting military leaders.[334] Malaysian officials were also criticised after the persistent release of contradictory information, most notably regarding the last point and time of contact with the aircraft.[335]

Vietnam temporarily scaled back its search operations after the country's Deputy Transport Minister cited a lack of communication from Malaysian officials despite requests for more information.[336] China, through the official Xinhua News Agency, said that the Malaysian government ought to take charge and conduct the operation with greater transparency, echoed by the Chinese Foreign Ministry days later.[222][337]

Questions and criticisms were raised by air force experts and the Malaysian opposition about the current state of Malaysia's air force and radar capabilities.[338][339][340] Opposition leader Anwar Ibrahim said it was impossible and unacceptable that the country's advanced British radar system and military readiness had not been triggered by such a diverted flight.[341]

On 14 March, Malaysia Airlines retired the MH370/MH371 flight number pair for the Kuala Lumpur–Beijing–Kuala Lumpur route, replacing them with MH318 and MH319 respectively.[272]

On 25 March, Chinese president Xi Jinping said he was sending a special envoy to Kuala Lumpur to consult with the Malaysian government over the missing aircraft.[342] The same day, around two hundred family members of the Chinese passengers protested outside the Malaysian embassy in Beijing.[343][344] Relatives who had arrived in Kuala Lumpur after the announcement continued with their protesting, accusing Malaysia of hiding the truth and harbouring the murderer. They also wanted an apology for the Malaysian government's poor initial handling of the disaster and their "premature" conclusion of loss, drawn without physical evidence.[345] An op-ed for China Daily said that Malaysia was not wholly to be blamed for its poor handling of such a "bizarre and unprecedented crisis", and appealed to Chinese people not to allow emotions to prevail over evidence and rationality.[346] The Chinese ambassador to Malaysia rebuked the "radical and irresponsible opinions" of the Chinese relatives, and said that they "[did] not represent the views of Chinese people and the Chinese government".[347] The ambassador also strongly criticised Western media for having "published false news, stoked conflict and even spread rumours" to the detriment of relatives and of Sino–Malaysian relations.[322]
See also[edit]
Malaysia Airlines Flight 370 conspiracy theories
Zenith Plateau
Note

Jump up^ MH is the IATA designator and MAS is the ICAO designator.[1] The flight is also marketed as China Southern Airlines Flight 748 (CZ748) through a codeshare.
Jump up^ Initial reports on 8 March stated that contact had been lost at 02:40. This was changed to 01:30 by the Media Statement at 02:00 on 9 March[3] and then to 01:20 by the Malaysian Director General of Civil Avation without comment or explanation.
Jump up^ Inmarsat stated that its conclusion had been based on a further analysis of the measurements of the Doppler shift of the "ping" transmissions.[59] Although the company did not elaborate, notably, the Inmarsat-3 F1 satellite's orbit is inclined by 1.67 degrees, causing it to cross the equator twice a day.[60] This motion could cause a difference between the Doppler shifts of northbound and southbound transmitters.
Jump up^ The aircraft is a Boeing 777-200ER (for Extended Range) model; Boeing assigns a unique customer code for each company that buys one of its aircraft, which is applied as an infix in the model number at the time the aircraft is built. The code for Malaysia Airlines is "H6", hence "777-2H6ER".[232]
Jump up^ One passenger boarded with a Hong Kong passport.[243]
Jump up^ The manifest released by Malaysia Airlines listed an Austrian and an Italian. These were subsequently identified as two Iranian nationals who boarded Flight 370 using stolen passports.[244]
Jump up^ 38 passengers and 12 crew.
Jump up^ Examples:
* Malaysia Airlines' chief executive, Ahmad Jauhari Yahya, initially said air traffic control was in contact with the aircraft two hours into the flight when in fact the last contact with air traffic control was less than an hour after takeoff.[323]
* Malaysian authorities initially reported that four passengers used stolen passports to board the aircraft before settling on two: one Italian and one Austrian.[324]
* Malaysia abruptly widened the search area to the west on 9 March, and only later explained that military radar had detected the aircraft turning back.[324] This was later formally denied by Rodzali Daud.[75]
* Malaysian authorities visited the homes of pilot Zaharie and co-pilot Fariq on 15 March, during which they took away a flight simulator belonging to Zaharie. Malaysian police chief Khalid Abu Bakar said this was the first police visit to those homes. On 17 March, the government contradicted this by saying police first visited the pilots' homes on the day following the flight's disappearance,[325] although this had been previously denied.[326]
* On 16 March, Malaysia's acting transport minister contradicted the prime minister's account on the timing of the final data and communications received. Najib Razak had said that the ACARS system was switched off at 01:07. On 17 March, Malaysian officials said that the system was switched off sometime between 01:07, time of the last ACARS transmission, and 01:37, time of the next expected transmission.[327][328]
* Three days after saying that the aircraft was not transporting anything hazardous, Malaysia Airlines' chief executive Ahmad said that potentially dangerous lithium batteries were on board.[314][316]
* MAS chief executive initially claimed that the last voice communication from the aircraft was, "all right, good night", with the lack of a call sign fuelling speculation that the flight may have been hijacked.[39][329][330] Three weeks later Malaysian authorities published the transcript that indicated the last words were "Good night Malaysian three seven zero".[37][331][332][333]
References

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Jump up^ DATO' AZHARUDDIN ABRUL RAHMAN. "PRESS CONFERENCE: MH370 10 MARCH 2014, 12:00 NOON". Department of Civil Aviation.
^ Jump up to:a b c d "Sunday, March 09, 02:00 AM MYT +0800 Malaysia Airlines MH370 Flight Incident – 6th Media Statement". Malaysia Airlines. scroll to bottom of page and select the last of the sub-web-pages. Retrieved 5 April 2014.
Jump up^ "Saturday, March 08, 10:30 AM MYT +0800 Malaysia Airlines MH370 Flight Incident – 3rd Media Statement". Malaysia Airlines. scroll to bottom of page and select the appropriate sub-web-pages. Retrieved 2 April 2014.
Jump up^ Neuman, Scott. "Search For Flight MH370 Reportedly Largest in History". The Two-way. Retrieved 19 March 2014.
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^ Jump up to:a b Buncombe, Andrew; Withnall, Adam (10 March 2014)."Malaysia Airlines Flight MH370: Oil slicks in South China Sea ‘not from missing jet’, officials say". The Independent.
Jump up^ Grudgings, Stuart. "Malaysia Airlines plane crashes in South China Sea with 239 people aboard: report". Retrieved 8 March 2014.
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Jump up^ Branigan, Tania (24 March 2014). "Missing flight MH370 lost in southern Indian Ocean, says Malaysian PM". The Guardian. Retrieved 24 March 2014.
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Jump up^ Exclusive: Radar data suggests missing Malaysia plane deliberately flown way off course – sources. Reuters, 14 March 2014
Jump up^ Radar Suggests Jet Shifted Path More Than Once. The New York Times, 14 March 2014
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Jump up^ Pearlman, Jonathan; Wu, Adam (21 March 2014). "Revealed: the final 54 minutes of communication from MH370". The Daily Telegraph.
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Jump up^ Inmarsat statement on Malaysia Airlines flight MH370.Inmarsat. 14 March 2014.
Jump up^ Chris Buckley and Nicola Clark (14 March 2014), Satellite Firm Says Its Data From Jet Could Offer Location The New York Times.
Jump up^ "Why can plane transponders be turned off from the cockpit?". CBS News. 19 March 2014. Retrieved 19 March 2014.
Jump up^ Ostrower, John; Pasztor, Andy (25 March 2014). "Malaysia Flight 370 Sent Final 'Partial Ping' That Could Aid Investigation". The Wall Street Journal. Retrieved 26 March 2014.
Jump up^ UK AIR ACCIDENTS INVESTIGATION BRANCH (AAIB)."INFORMATION PROVIDED TO MH370 INVESTIGATION". Malaysia Airlines. Retrieved 30 March 2014.
Jump up^ Weaver, Matthew (24 March 2014). "MH370 assumed to have crashed with no survivors, says Malaysia Airlines – live updates". The Guardian.
Jump up^ Sophie Curtis (24 March 2014). "How British satellite company Inmarsat tracked down MH370". The Daily Telegraph.
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Jump up^ Air Chief Marshal Angus Houston to lead Joint Agency Coordination Centre. The Prime Minister of Australia, 30 March 2014
Jump up^ Flight MH370: former Australian defence chief to co-ordinate search. The Guardian, 30 March 2014
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Jump up^ "Malaysia Airlines live: military denies report they tracked plane hundreds of miles off course". The Daily Telegraph. 11 March 2014.
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Jump up^ Matthew Wald (13 March 2014), U.S. Takes Back Seat in Malaysian Jet Inquiry The New York Times
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Jump up^ 'Deliberate Act' Used to Steer Missing Plane Off Course.ABC News 15 March 2014.
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*"Missing Malaysian plane MH 370 never entered Thai airspace". The Indian Express. 18 March 2014.
*by g surach (16 March 2014). "Missing MH370: No way plane flew over Indian airspace undetected – Nation". The Star. Malaysia.
*"Missing Malaysian jet LIVE updates: Kazakhstan says detected no unidentified planes when Malaysian jetliner vanished : Asia, News". India Today. Retrieved 30 March 2014.
*Haris Hussain And Farrah Naz Karim (18 March 2014)."MISSING MH370: EXCLUSIVE: Flying as low as 80 feet 'possible'". New Straits Times.
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Jump up^ New MH370 search area may be opened in Indian Ocean – White House The Daily Telegraph 13 March 2014.
Jump up^ Martha Raddatz (13 March 2014), US Officials Have 'Indication' Malaysia Airline Crashed into Indian Ocean. ABC News.
Jump up^ "Missing MH370: Australia to lead southern search for MH370". The Star. 17 March 2014.
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Jump up^ Jacobs, Frank (26 March 2014). "MH370 and the Secrets of the Deep, Dark Southern Indian Ocean". Foreign Policy
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Jump up^ "Malaysia police probe flight engineer on missing MH370".The Straits Times. 17 March 2014.
Jump up^ Caregiver sacrifices time for family of passengers New Straits Times
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Jump up^ Malaysia Airlines Flight Vanishes, Three Americans on Board. ABC News, 7 March 2014
Jump up^ Vast waters hide clues in hunt for missing Malaysia Airlines flight. CNN, 9 March 2014
Jump up^ Malaysia Airlines Flight MH 370: See names, faces of passengers aboard doomed plane. Daily News (New York), 8 March 2014
Jump up^ Two Europeans listed on missing Malaysia flight were not on board. Reuters, 8 March 2014
Jump up^ RMAF chief: Recordings captured from radar indicate flight deviated from original route. The Star, 9 March 2014
Jump up^ INTERPOL confirms at least two stolen passports used by passengers on missing Malaysian Airlines flight MH370 were registered in its databases. INTERPOL, 9 March 2014
Jump up^ Malaysia Airlines MH370: Stolen passports 'no terror link'. BBC News, 11 March 2014
Jump up^ Exclusive: Radar data suggests missing Malaysia plane deliberately flown way off course – sources. Reuters, 12 March 2014
Jump up^ MH370 Malaysia Airlines: Anwar Ibrahim says government purposefully concealing information. The Daily Telegraph, 3 April 2014
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Jump up^ MH370 possibly in one of two ‘corridors’, says PM. The Malay Mail, 15 March 2014
Jump up^ Nuke test watchdog shares data in search of missing Malaysia Airlines jet. The Voice of Russia, 15 March 2014
Jump up^ http://www.nytimes.com/2014/03/17/world/asia/india-flight-370-missing-airplane.html?_r=0
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Jump up^ MH370: Malaysia Following International Procedures On Information Disclosure. BERNAMA, 31 March 2014
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External links
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JACC: Media releases, press conference transcripts.
US Department of Defense - MH370: news & photos regarding MH370 from the U.S. Department of Defense (content is in the public domain)
Zenith Plateau as the final resting place for MH370. Deep Reef Explorer, James Cook University, Queensland, Australia. last accessed April 9, 2014.

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Western Canada Wilderness Committee v. Canada (Fisheries and Oceans), 2014 FC 148 (CanLII) Date: 2014-02-14 T-1777-12 Western Canada Wilderness Committee v. Canada (Fisheries and Oceans), 2014 FC 148

Western Canada Wilderness Committee v. Canada (Fisheries and Oceans), 2014 FC 148 (CanLII)
Date: 2014-02-14
Docket: T-1777-12
URL: http://canlii.ca/t/g343m
Citation: Western Canada Wilderness Committee v. Canada (Fisheries and Oceans), 2014 FC 148 (CanLII), <http://canlii.ca/t/g343m> retrieved on2014-04-03
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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.

[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.



[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.



[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 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.



[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.



[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 disagreement 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.



[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.



[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 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 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 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.



[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.



[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 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 (CanLII), 2009 FC 878, 349 F.T.R. 225 (“Nooksack Dace”) and Georgia Strait Alliance v. Canada (Minister of Fisheries and Oceans), 2010 FC 1233 (CanLII), 2010 FC 1233, [2012] 3 F.C.R. 136 rev’d in part on other grounds 2012 FCA 40 (CanLII), 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 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.



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 (CanLII), 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, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, 105 D.L.R. (3d) 745.



[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 (CanLII), 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 (CanLII), 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 (CanLII), 2010 FC 757, 372 F.T.R. 40, at para. 40, citing Canada v. Kelso, 1981 CanLII 171 (SCC), [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.



[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 (CanLII), 2001 SCC 40, [2001] 2 S.C.R. 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 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 (CanLII), 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.



[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.



[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.



[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 (CanLII), 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 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 (CanLII), 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 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 CanLII 33 (SCC), [1985] 1 S.C.R. 721, [1985] S.C.J. No. 36, at para. 35.



[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.



[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), 1993 CanLII 3004 (FCA), [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.



[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 (CanLII), 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 formandamus in light of the recent developments in these cases.



[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 insubsection 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.



[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 43of 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.



[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 CanLII 81 (SCC), [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 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 (CanLII), 2008 FC 687, [2008] F.C.J. No. 880 and Rousseau v. Canada (Minister of Citizenship and Immigration), 2004 FC 602 (CanLII), 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: seeAthabasca Chipewyan First Nation v. Canada (Minister of the Environment), 2011 FC 962 (CanLII), 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 seeksmandamus 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.



[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.



[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.









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;



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





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









(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.





(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.





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 :







(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.





(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, 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.



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 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 to46 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.






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.







(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.



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.









(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.











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.







(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.



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.







(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.






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

Stephen Harper surprised at rules for choosing Supreme Court judge Government will follow both the letter and spirit of the ruling, according to PM

Stephen Harper surprised at rules for choosing Supreme Court judge
Government will follow both the letter and spirit of the ruling, according to 




Prime Minister Stephen Harper says he's surprised to learn that Quebec has different rules when it comes to appointing judges to the Supreme Court of Canada.

Speaking in question period, Harper said it was "a big surprise" to discover the rules for appointing Quebec judges to the Supreme Court were different from the rules for appointing judges from other provinces.

Justice Minister Peter MacKay, in explaining his boss' reaction, described the regulations as "new." The rules have been in effect since 1875, although MacKay denies that and says it was an interpretation by the Supreme Court.

Harper was responding to questions in the House of Commons about his government's recent fumbled attempt to name Marc Nadon to the high court.

The Supreme Court itself ruled recently that Nadon, a Federal Court judge, did not fit the criteria to be named to the high court.
'Limits pool of judges': MacKay

Harper has said he will follow the letter and the spirit of the ruling.

MacKay says the decision sets new rules for the nomination of Quebec judges to the Supreme Court.

"It limits the pool of judges who can go to the Federal Court now from Quebec if they have any aspirations of going to the Supreme Court of Canada," he said Tuesday outside the Commons.

"And it limits the pool of eligible judges from the province of Quebec for the Supreme Court of Canada, which I think is unfortunate.

It creates a double standard." Opposition Leader Tom Mulcair said the situation could have been easily resolved if the government had done its homework.

"It's enough to read the law on the Supreme Court to understand that the nomination of Judge Nadon did not conform," the New Democratic Party leader said.
Opposition leaders critical

Mulcair said that even though the prime minister had recognized the Quebecois as a nation in the House of Commons he has since refused to offer any concrete effects.

Liberal Leader Justin Trudeau said Harper has to take responsibility for having a Supreme Court seat vacant for several months and said the prime minister showed a lack of judgment in his choice of a candidate to fill it.

MacKay would not say when another judge will be nominated to fill the vacant spot.