Systemic problems in Canada’s protection of species at risk

In a groundbreaking case, Ecojustice has demonstrated the “endemic systemic problems” in Canada’s  species at risk protection regime. On February 14, 2014 Justice Mactavish of the Federal Court released her decision in Western Canada Wilderness Committee v. Canada (Fisheries and Oceans). On behalf of five ENGO’s Ecojustice challenged the admitted failure of the Minister of Fisheries and Oceans and the Minister of the Environment to prepare recovery strategies for four species until many years after the statutory deadlines to do so. The main issue was what the consequences should be for this failure.

The federal government admitted that it had not met its obligations

The federal government acknowledged 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.

In an attempt to excuse this conduct, they offered four main explanations:

1. They needed time to develop policies, standards, administrative structures and consultation processes and to acquire the scientific expertise after the enactment of SARA (in 2002!).
2. “Organizational capacity” and the need to manage competing legal duties, including the need to consult with stakeholders including provincial governments, First Nations, landowners and industry representatives.
3. “Scientific challenges”, particularly in relation to the identification of critical habitat.
4. “Responding to change”, in particular, the evolving understanding of the law resulting from various decisions of the federal Court.

The court declared the Ministers’ failure to be “unlawful”

Ecojustice sought a declaration from the court that 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 was unlawful. The Justice Mactavish agreed:

[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.

Ecojustice also sought an order of “mandamus” that would compel the competent ministers 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. Justice Mactavish rejected this part of the application as premature. She will, however, retain jurisdiction over the matter, and hear the case again if the Ministers fail to meet their duties with regard to these four species moving forward.

The case reveals egregious problems within the Ministries

The systemic problems revealed in this case are of grave concern. As Justice Mactavish noted:

[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.

…

[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.

Congratulations to Ecojustice.