February 23, 2012

Protecting Critical Habitat of the Endangered Killer Whale Species under SARA


Environmental legislation is often criticized for its ineffectiveness despite apparent strong environmental protective language. This was not the case recently when the Federal Court of Appeal gave a robust interpretation of the Species At Risk Act (SARA) requiring government to implement a non-discretionary critical habitat protection scheme for the killer whale in place of a discretionary management scheme. One of the interesting question we foresee is how does one protect the critical habitat of the killer whale in the face of activities such as the Northern Enbridge Pipeline Project?

In the earlier decision (2010 FC 1233), the Federal Court declared that the ministerial discretion available under the Fisheries Actmeant that measures under that Act were insufficient to legally protect critical habitat as required under section 58 of SARA. The Federal Court also found it unlawful for the Minister of Fisheries and Oceans to have cited discretionary provisions of the Fisheries Act in a protection statement concerning critical habitat of coastal killer whale populations. SARA requires the Minister to make an order to protect the critical habitat of listed endangered or threatened aquatic species if their critical habitat is not already protected under SARA or other legislation. The Minister had determined that the Fisheries Act legally protected some aspects of critical habitat for killer whales and in combination with other laws and policy satisfied the requirements of SARA. The Federal Court, however, ruled that the protection for critical habitat available under other legislation had to equal to that which is available under a SARA protection order, and that the measures available under the Fisheries Act were insufficient as they could be diluted by the broad discretion of the Minister (paras. 46-47). The Federal Court made eleven declarations of law including, with respect to the protection  statement, that the Minister erred in law in determining that killer whale critical habitat was already legally protected by existing laws in Canada, that it was unlawful for the Minister to have cited Provincial laws in its protection statement as they did not protect critical habitat, and that ministerial discretion does not protect critical habitat and it was unlawful for the Minister to have cited discretionary provisions in his protection statement (para. 49). The Minister appealed from this last declaration alone.

The Minister appealed based both on standard of review and on the interpretation given to SARA. With respect to standard of review, Mainville J.A. squarely rejected the argument that the Minister’s role under SARA’s provisions entitled him to deference in his interpretation of this legislation as the Act made no reference to the Minister having the entitlement to interpret the statute, and the standard of review was upheld to be on a standard of correctness. The Federal Court of Appeal dismissed the argument that the Minister was entitled to deference as there was no privative clause to suggest this, the language of the Act was mandatory and did not support ministerial discretion or deference, the Minister was acting in an administrative capacity rather than as an adjudicator in interpreting the legislation in question, and the Minister’s expertise in fisheries did not confer any special legal expertise on him (paras. 101-104).

Mainville J.A. also rejected the Minister’s argument that the Fisheries Act could protect critical habitat to the same standard as SARA for much the same reasons as the lower court in that it would mean substituting a compulsory and non-discretionary protection scheme with one largely subject to ministerial discretion (para. 9). Mainville J.A. rejected this interpretation as clearly incompatible with the provisions SARA, which requires a “non-discretionary critical habitat protection scheme”, as opposed to the “discretionary management scheme” cited in the Minister’s protection statement (para. 109). The Federal Court of Appeal did accept that in certain situations the combined operation of the Fisheries Act and its Regulations might afford sufficient protection to meet the standard set out in SARA but found no evidence on the record that this was the case for critical killer whale habitat (para. 11). However, this was only based on the interpretation of a specific section of the Act dealing with “deleterious substances” which was not subject to discretion by the Minister (para. 138).

The protection statement of the Minister which was intended to address the need to protect killer whale habitat was found wanting for not making any legal provision for how “acoustic degradation, chemical and biological contamination and diminished prey availability” as components of critical habitat would be protected despite their identification as such in the recovery strategy process required under SARA for all listed threatened and endangered species; instead, these were treated as “ecosystem features” to be dealt with through “legislative and policy tools” (para. 32).

Canada (Fisheries and Oceans) v. David Suzuki Foundation2012 FCA 40 (Fed.C.A.)