Date:
20101207
Dockets:
T-1552-08, T-541-09
Citation:
2010 FC 1233
Ottawa, Ontario, December 7, 2010
PRESENT: The Honourable Mr. Justice Russell
Docket: T-1552-08
BETWEEN:
GEORGIA STRAIT ALLIANCE, SIERRA CLUB OF CANADA,
DAVID SUZUKI FOUNDATION, DOGWOOD
INITIATIVE,
ENVIRONMENTAL DEFENCE CANADA,
GREENPEACE CANADA,
INTERNATIONAL FUND FOR ANIMAL
WELFARE,
RAINCOAST CONSERVATION SOCIETY, and
WESTERN CANADA WILDERNESS COMMITTEE
Applicants
and
MINISTER OF FISHERIES AND OCEANS
Respondent
Docket:
T-541-09
AND
BETWEEN
DAVID SUZUKI FOUNDATION, DOGWOOD
INITIATIVE,
ENVIRONMENTAL DEFENCE CANADA,
GREENPEACE CANADA,
INTERNATIONAL FUND FOR ANIMAL
WELFARE,
RAINCOAST CONSERVATION SOCIETY,
SIERRA CLUB OF CANADA, and
WESTERN CANADA WILDERNESS COMMITTEE
Applicants
and
THE MINISTER OF FISHERIES AND
OCEANS,
THE MINISTER OF THE ENVIRONMENT
Respondents
TABLE OF CONTENTS
BACKGROUND.. 4
Procedural History and
Parties. 4
Southern and Northern
Resident Killer Whales. 6
Listing and Recovery Planning
for the Resident Killer Whales. 7
Recovery Strategy
Identifies Critical Habitat 10
180 Days Later, DFO Must
Protect Critical Habitat 11
Applications for
Judicial Review.. 12
Consolidation. 15
ISSUES. 16
STANDARD OF REVIEW... 23
Applicants’ Arguments on
Standard of Review.. 24
Respondents’ Arguments. 25
Appropriate Standard of
Review.. 26
ARGUMENTS. 27
The Applicants. 27
The Court
should exercise its discretion to hear first moot application. 27
Hearing a moot application. 28
Minister’s
duty. 29
Recovery
Strategy. 30
Protection Statement 31
Protection Statement is unlawful 31
Fisheries Act 35
Canadian Environmental Assessment Act 36
Provincial laws are not laws of Parliament 36
Protection Statement fails to protect all components. 37
Protection Order. 38
Interpretation of section 58. 38
Bilingual interpretation. 38
The Case of Environmental Defence. 41
Unlawful limitation of the scope of the Protection Order. 42
The Respondents. 44
Court
should not exercise its jurisdiction. 44
Protection Statement 46
Protection Order application
is misguided. 49
Future intentions. 52
Lack of jurisdiction. 53
Improper submissions. 54
Applicants’ Reply. 54
ANALYSIS. 57
General introduction. 57
Protection Order application. 60
Respondents’ grounds. 61
Application is misguided. 61
Order cannot be challenged. 62
Order cannot be more than it is. 67
Attempt to review speculated future intentions. 69
Applicants cannot obtain the declaration sought 74
Protection Statement application. 84
Should the Court hear it?. 84
Adversarial context 86
Judicial economy. 88
Merits of Protection Statement application. 91
Protection Statement 91
Disagreement between the Parties. 92
Legal requirements of a Protection Statement 104
Plain language interpretation
of subsection 58(5)(b) 105
Role of a Protection
Statement within the SARA scheme. 106
Intention of Parliament
– Habitat protection must be mandatory and meaningful 107
Protection Statement unlawfully
includes non-statutory instruments. 107
Protection Statement unlawfully
cites possible future provisions. 108
Protection Statement unlawfully
relies on ministerial discretion. 110
Fisheries Act and Regulations. 111
Canadian
Environmental Assessment Act 120
Provincial laws are not
laws of Parliament 121
Protection Statement
fails to set out how all components of critical habitat are legally protected. 121
Conclusions. 122
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
At
issue are two consolidated applications for judicial review to challenge related
decisions. The first application (Protection Statement Application) challenges the
Minister
of Fisheries and Oceans’ Northern and Southern Resident Killer Whales (Orcinus
orca) in Canada: Critical Habitat Protection Statement (Protection
Statement), which was issued pursuant to subsection 58(5)(b) of the Species
at Risk Act, S.C. 2002, c. 29 (SARA, or the Act) on September
10, 2008.
[2]
The
second application (Protection Order Application) challenges a protection order
made
in February 2009 by the Minister of Fisheries and Oceans and the Minister of
the Environment (Ministers) to limit the scope of the Critical
Habitats of the Northeast Pacific Northern and Southern Resident Populations of
the Killer Whale (Orcinus orca) Order (Protection
Order), made pursuant to subsection 58(5)(a) of SARA.
BACKGROUND
Procedural History and Parties
[3]
These
two consolidated applications for judicial review are concerned with the
Respondents’ obligations under section 58 of SARA to provide legal protection
for the critical habitat of two populations of killer whales.
[4]
The
first application challenges the September 10, 2008 decision of the Minister of
Fisheries and Oceans to issue the Protection Statement pursuant to subsection
58(5)(b) of SARA.
[5]
The
second application challenges the February 2009 decision made jointly by the
Minister of Fisheries and Oceans and the Minister of the Environment to issue
the Protection Order under subsections 58(4) and (5) of SARA. Specifically, it
challenges the Respondents’ decision to limit the scope of the Protection Order
such that it applies only to geospatial areas or geophysical attributes of critical
habitat.
[6]
The
nine Applicants are non-profit environmental organizations from across Canada. They each have a genuine interest in the survival and recovery of the Resident Killer Whales
and in the interpretation and application of SARA. The Respondents do not
contest the Applicants’ public interest standing before this Court.
[7]
The
Respondent Minister of Fisheries and Oceans is charged with the duty to protect
the critical habitat of any aquatic species, including the Resident Killer
Whales.
[8]
The
Respondent Minister of the Environment, as the Minister responsible for the
Parks Canada Agency, is charged with the duty to protect critical habitat on
federal lands administered by Parks Canada, tiny portions of which overlap with
the Resident Killer Whales’ critical habitat at issue in this proceeding.
Southern and Northern Resident Killer Whales
[9]
Two
distinct populations of killer whales, known as the northern residents and the southern
residents (and herein jointly referred to as the Resident Killer Whales) occupy
the waters off the west coast of British Columbia.
[10]
The
southern Resident Killer Whale is an endangered species. Section 2 of SARA
defines an “endangered species” as “a wildlife species that is facing imminent
extirpation or extinction.”
[11]
The
northern Resident Killer Whale is a threatened species. Section 2 of SARA
defines a “threatened species” as “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.”
[12]
The
Resident Killer Whale populations are considered at risk because of their small
population size and low reproductive rate as well as their exposure to a
variety of human-caused threats to both the whales and their habitat. These
threats have the potential to prevent their recovery or to cause further
declines in population. Principal among these anthropogenic threats are
reductions in the availability of salmon prey (i.e. food), environmental
contamination and physical and acoustic disturbance.
Listing and Recovery Planning for the Resident
Killer Whales
[13]
SARA
prescribes a process whereby species at risk are listed and given legal
protections, with the objective of ensuring recovery of the species back to
healthy population levels. To achieve this objective, a recovery strategy is
developed and implemented for each species listed as endangered or threatened.
Central to the recovery process is the identification and protection of the
species’ critical habitat.
[14]
Pursuant
to the mandatory timelines under section 42(2) of SARA, the Department of
Fisheries and Oceans (DFO) was required to include a proposed recovery strategy
for the Resident Killer Whales on the public registry by June 5, 2006. The SARA
public registry is established under section 120 for the purpose of
facilitating access to documents relating to matters under the Act.
[15]
In
2004, DFO convened the Resident Killer Whale Recovery Team (Recovery Team). The
Recovery Team, made up of leading independent and governmental experts, was
tasked with creating a recovery strategy for the Resident Killer Whales in
accordance with SARA.
[16]
Over
the next year, the Recovery Team met periodically to develop the recovery
strategy. The Recovery Team was instructed to identify the critical habitat of
the Resident Killer Whales as well as examples of activities likely to destroy
critical habitat.
[17]
At
meetings and in electronic communications, the Recovery Team discussed the
biological or ecosystem features of critical habitat. The discussion of
biological features of critical habitat focused on the association between
salmon abundance and the use of an area by Resident Killer Whales, as well as
the acoustic and environmental quality of critical habitat.
[18]
The
first draft of the recovery strategy was completed on March 15, 2005. It
identified critical habitat as well as threats to both the “abiotic” (i.e. geophysical)
and “biotic” (i.e. biological) features of critical habitat.
[19]
Following
extensive review and comment, a final draft recovery strategy was completed for
submission to the Minister of Fisheries and Oceans on May 15, 2006 (May 2006
Draft Recovery Strategy). The May 2006 Draft Recovery Strategy identified
critical habitat as a set of physical and biological features occurring at a
specific geospatial location. It also identified threats to those features.
[20]
The
May 2006 Draft Recovery Strategy was never delivered to the Minister. Instead,
in August 2006, the Recovery Team was informed that the May 2006 Draft Recovery
Strategy had been edited and that information identifying critical habitat had
been removed pursuant to DFO policy.
[21]
A
lengthy dispute followed between members of the Recovery Team and DFO
bureaucrats. In March 2007, the critical habitat section of the May 2006 Draft
Recovery Strategy was reinstated.
[22]
In
May 2007, the now-restored document was again sent out for review by government
agencies. During the course of that review another attempt was made, this time
by the Department of National Defence, to edit the critical habitat section.
The proposed revisions related to the acoustic features of critical habitat and
to threats to critical habitat caused by underwater noise. Members of the
Recovery Team successfully objected to many of the proposed editorial changes.
[23]
On
June 21, 2007, pursuant to section 42(1) of SARA, DFO posted the Proposed
Recovery Strategy for the Resident Killer Whales to the public registry
(Proposed Recovery Strategy). It was similar but not identical to the May 2006
Draft Recovery Strategy.
[24]
Posting
of the Proposed Recovery Strategy was followed by a public comment period that
ended in August 2007. According to the mandatory timelines under SARA, the Final
Recovery Strategy for the Northern and Southern Killer Whales (Recovery
Strategy) should have been finalized 30 days later, by September 19, 2007.
Instead, it was delayed as DFO bureaucrats once again attempted to make edits.
[25]
During
the fall of 2007, DFO officials heavily edited the critical habitat section of
the Proposed Recovery Strategy. DFO removed all reference to two threats to
critical habitat: acoustic degradation and reduction in the availability of
salmon prey. Additionally, future scientific studies regarding these threats
were removed from the proposed “schedule of studies to identify critical
habitat” required under section 41(1) (c.1).
[26]
Members
of the Recovery Team strongly objected to these editorial changes and sought to
resolve their concerns with DFO. At some point before March 14, 2008, DFO
reinstated most of the excised portions identifying noise and reduced
availability of salmon prey as threats to critical habitat. On March 14, 2008,
DFO posted the Recovery Strategy to the public registry.
Recovery Strategy Identifies Critical Habitat
[27]
As
required by subsection 41(1)(c) of SARA, section 3 of the Recovery
Strategy identified critical habitat for the Resident Killer Whales, the
components of the critical habitat and threats to critical habitat.
[28]
The
geospatial location of critical habitat of the Resident Killer Whales is
identified on maps in Figures 4 and 5, and in the marine coordinates in
Appendix B of the Recovery Strategy.
[29]
The
components of critical habitat clearly include the presence and availability of
salmon prey for the Resident Killer Whales.
[30]
Threats
to critical habitat (in section 3.2) include diminished prey availability,
chemical and biological contamination and acoustic degradation.
180 Days Later, DFO Must Protect Critical Habitat
[31]
Section
58 of SARA required that, by September 10, 2008, the critical habitat
identified in the Recovery Strategy be legally protected from destruction under
subsection 58(5). Legal protection of critical habitat can take one of two
forms: direct protection under SARA or indirect protection under other Acts of
Parliament.
[32]
Direct
protection under SARA is engaged through the issuance of a protection order
under subsection 58(4). A protection order applies the prohibition against
destruction of critical habitat in subsection 58(1) to the critical habitat
areas and components set out in the protection order. If critical habitat is
not already protected, then a competent minister must issue a protection
order.
[33]
Indirect
protection under other federal laws is confirmed through a protection statement
under subsection 58(5)(b) of SARA. A protection statement describes how
critical habitat is already protected from destruction by provisions in or
measures under other Acts of Parliament. A protection statement cites the other
federal legislative provisions that already legally protect critical habitat
from destruction.
[34]
On
September 10, 2008, DFO bureaucrats delivered to the Deputy Minister of
Fisheries and Oceans a memorandum explaining their recommendation for
protection of critical habitat of the Resident Killer Whales (Protection
Statement Memo). This memorandum recommended issuing a protection statement. It
attached a table containing a proposed list of tools available to protect
critical habitat, as well as a draft protection statement for approval by the
Minister’s delegate.
[35]
The
Applicants posit that the Protection Statement Memo and accompanying
attachments described the section 58 legal duty to protect critical habitat as
being limited to the protection of the “geophysical attributes” of the critical
habitat. The Applicants say that the Protection Statement Memo and attachments
consistently make a policy distinction, which is challenged here by the
Applicants. The distinction made is between DFO’s duty to legally protect
geophysical attributes of critical habitat, on one hand, and DFO’s discretion
to “manage and mitigate” the biological, chemical and acoustic components of
critical habitat on the other.
[36]
On
September 10, 2008, the final Protection Statement was posted to the SARA
public registry. The Applicants say that the Protection Statement maintains the
distinction between the duty to provide legal protection for the geophysical
attributes of critical habitat and the discretion to “manage and mitigate”
threats to biological and other ecosystem features.
Applications for Judicial Review
[37]
On
October 8, 2008, a judicial review application was commenced challenging the
lawfulness of the Protection Statement. In Application T-1552-08, the
Applicants alleged that DFO erred in law and jurisdiction in issuing a
Protection Statement that relies on non-binding policy, prospective legislation
and ministerial discretion – none of which legally protect critical habitat
within the meaning of section 58 of SARA. The Notice of Application was amended
on January 23, 2009.
[38]
By
February 9, 2009, DFO had reversed itself, recommending that its Minister
replace the Protection Statement with a protection order under SARA.
[39]
On
February 13, 2009, DFO sought the cooperation of the Minister of the
Environment, as the Minister responsible for Parks Canada, to issue a joint
order under subsections 58(4) and (5) of SARA. Alan Latourelle, CEO of Parks Canada made recommendations to the Minister regarding the proposed protection order in a February
13, 2009 memorandum (Latourelle Memo). Paraphrased, this memorandum explains
that:
1.
DFO
is currently facing a legal challenge in Federal Court regarding the Protection
Statement. DFO is encouraging Parks Canada to issue a joint order quickly
before DFO has to proceed any further with the existing lawsuit;
2.
A
new protection statement from Parks Canada would be open to challenge on the
same grounds as the Protection Statement issued by DFO;
3.
DFO’s
proposed protection order does not define which activities are prohibited as
destructive of critical habitat. Enforcement of DFO’s proposed order might thus
prove difficult.
[40]
Issuing
a Protection Order under subsection 58(4) of SARA usually involves
pre-publication in the Canada Gazette Part I, to allow 30 days for
public comment. However, on the recommendation of DFO officials, the Ministers
agreed to forego public consultation on the Protection Order. Thus, the
Applicants say they were denied any opportunity to comment on the Protection
Order before it was finalized.
[41]
On
March 4, 2009, the Protection Order was published in the Canada Gazette Part
II. The Protection Order states that the prohibition against destruction of
critical habitat in subsection 58(1) of SARA applies to the critical habitat of
the Resident Killer Whales described in Schedule I. Schedule I is a list of
marine coordinates for the geospatial location of critical habitat.
[42]
The
Protection Order was published with an accompanying Regulatory Impact Analysis
Statement (RIAS). The Applicants take the position that the RIAS, quoted below,
continues to reflect DFO’s distinction between its duties towards geophysical
areas and its discretion to manage and mitigate the biological features of
critical habitat:
[t]he recovery strategy identifies at section 3 the
critical habitats as defined geophysical areas where these populations
concentrate. In addition DFO recognizes that other ecosystem features such as
the availability of prey for foraging and the quality of the environment are
important to the survival and recovery of the Northern and Southern Resident
Killer Whales.
[43]
On
March 6, 2009, the Applicants wrote to DFO advising that they had serious
concerns that the Protection Order may not legally protect the biological
elements of critical habitat. The Applicants also sought clarification on other
matters, including whether DFO had abandoned its position that the laws and
policies set out in the Protection Statement “legally protected” the critical
habitat of Resident Killer Whales.
[44]
On
March 10, 2009, the Government of Canada responded, through counsel. As
paraphrased by the Applicants, the response stated that:
1.
DFO
characterizes the Protection Order as an “optional alternative” to the
Protection Statement, rather than a required alternative given the unlawfulness
of the Protection Statement;
2.
DFO
refuses to disavow reliance on policy and discretionary tools that do not
legally protect critical habitat in protection statements; and
3.
DFO
refuses to confirm that the Protection Order protects the biological features
of critical habitat from destruction.
[45]
On
April 3, 2009, the Applicants filed the second judicial review application
against DFO and the Minister of the Environment. The Protection Order Application
challenges DFO’s practice of limiting the application and scope of section 58
of SARA to protect only geospatial areas and/or geophysical elements of
critical habitat, and it challenges the application of this practice or policy
to the Protection Order.
Consolidation
[46]
On
March 18, 2009, the Respondents filed a motion to have the Protection Statement
Application, in File No. T-1552-08 dismissed on the ground of mootness.
[47]
On
April 9, 2009, the Applicants filed a motion seeking to have the two
applications for judicial review consolidated.
[48]
By
the Order of Justice O’Reilly, the Respondents’ motion to dismiss the Protection
Statement Application on the ground of mootness was denied. The Applicants’
motion to consolidate the two applications into one proceeding was granted.
While Justice O’Reilly held that the Protection Statement Application in File
No. T-1552-08 was technically moot, he refused to strike the application so as
to preserve this Court’s discretion to issue the relief sought in the Protection
Statement Application for judicial review.
ISSUES
[49]
The
issues on the application can be summarized as follows:
1.
Whether
the Court ought to exercise its discretion to hear the moot Protection
Statement Application;
2.
Whether
the Minister of Fisheries and Oceans erred in issuing a Protection Statement
that relies on policy and other non-statutory instruments, prospective laws and
ministerial discretion to provide legal protection for critical habitat;
3.
Whether
there is a justiciable issue for review in the Protection Order Application;
4.
Whether
the Ministers erred in limiting the application of the Protection Order to the
geophysical area to the exclusion of the other components of critical habitat.
[50]
The
following provisions of the Act are applicable in these proceedings:
Definitions
2.(1) The definitions in this
subsection apply in this Act.
…
“COSEWIC”
“COSEWIC” means the Committee
on the Status of Endangered Wildlife in Canada established by section 14.
…
Contents if recovery
feasible
41. (1) If the competent minister determines that the recovery of
the listed wildlife species is feasible, the recovery strategy must address
the threats to the survival of the species identified by COSEWIC, including
any loss of habitat, and must include
(a) a
description of the species and its needs that is consistent with information
provided by COSEWIC;
(b) an
identification of the threats to the survival of the species and threats to
its habitat that is consistent with information provided by COSEWIC and a
description of the broad strategy to be taken to address those threats;
(c) an
identification of the species’ critical habitat, to the extent possible,
based on the best available information, including the information provided
by COSEWIC, and examples of activities that are likely to result in its
destruction;
(c.1) a
schedule of studies to identify critical habitat, where available information
is inadequate;
(d) a
statement of the population and distribution objectives that will assist the
recovery and survival of the species, and a general description of the
research and management activities needed to meet those objectives;
(e) any
other matters that are prescribed by the regulations;
(f) a
statement about whether additional information is required about the species;
and
(g) a
statement of when one or more action plans in relation to the recovery
strategy will be completed.
Contents if recovery not feasible
(2) If the competent minister
determines that the recovery of the listed wildlife species is not feasible,
the recovery strategy must include a description of the species and its
needs, an identification of the species’ critical habitat to the extent
possible, and the reasons why its recovery is not feasible.
Multi-species or ecosystem approach permissible
(3) The competent minister may
adopt a multi-species or an ecosystem approach when preparing the recovery
strategy if he or she considers it appropriate to do so.
Regulations
(4) The Governor in Council may, on
the recommendation of the Minister after consultation with the Minister
responsible for the Parks Canada Agency and the Minister of Fisheries and
Oceans, make regulations for the purpose of paragraph (1)(e)
prescribing matters to be included in a recovery strategy.
Proposed
recovery strategy
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.
First listed wildlife 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.
…
Destruction
of critical habitat
58. (1) Subject to this section, no person shall destroy any part of
the critical habitat of any listed endangered species or of any listed threatened
species — or of any listed extirpated species if a recovery strategy has
recommended the reintroduction of the species into the wild in Canada — if
(a) the
critical habitat is on federal land, in the exclusive economic zone of Canada
or on the continental shelf of Canada;
(b) the
listed species is an aquatic species; or
(c) the
listed species is a species of migratory birds protected by the Migratory
Birds Convention Act, 1994.
Protected
areas
(2) If the critical habitat or a portion of the critical habitat is
in a national park of Canada named and described in Schedule 1 to the Canada
National Parks Act, a marine protected area under the Oceans Act,
a migratory bird sanctuary under the Migratory Birds Convention Act, 1994
or a national wildlife area under the Canada Wildlife Act, the
competent Minister must, within 90 days after the recovery strategy or action
plan that identified the critical habitat is included in the public registry,
publish in the Canada Gazette a description of the critical habitat or
portion that is in that park, area or sanctuary.
Application
(3) If subsection (2) applies, subsection (1) applies to the
critical habitat or the portion of the critical habitat described in the Canada
Gazette under subsection (2) 90 days after the description is published
in the Canada Gazette.
Application
(4) If all of the critical habitat or any portion of the critical
habitat is not in a place referred to in subsection (2), subsection (1)
applies in respect of the critical habitat or portion of the critical
habitat, as the case may be, specified in an order made by the competent
minister.
Obligation to make order or statement
(5) Within 180 days after the recovery strategy or action plan that
identified the critical habitat is included in the public registry, the
competent minister must, after consultation with every other competent
minister, with respect to all of the critical habitat or any portion of the
critical habitat that is not in a place referred to in subsection (2),
(a) make
the order referred to in subsection (4) if the critical habitat or any
portion of the critical habitat is not legally protected by provisions in, or
measures under, this or any other Act of Parliament, including agreements
under section 11; or
(b) if the
competent minister does not make the order, he or she must include in the
public registry a statement setting out how the critical habitat or portions
of it, as the case may be, are legally protected.
|
Définitions
2. (1) Les définitions qui suivent s’appliquent à la présente loi.
…
« COSEPAC »
« COSEPAC » Le Comité sur la situation des
espèces en péril au Canada, constitué en application de l’article 14.
…
Rétablissement
réalisable
41. (1) Si le ministre compétent conclut
que le rétablissement de l’espèce sauvage inscrite est réalisable, le
programme de rétablissement doit traiter des menaces à la survie de l’espèce
— notamment de toute perte de son habitat — précisées par le COSEPAC et doit
comporter notamment :
a) une
description de l’espèce et de ses besoins qui soit compatible avec les
renseignements fournis par le COSEPAC;
b) une
désignation des menaces à la survie de l’espèce et des menaces à son habitat
qui soit compatible avec les renseignements fournis par le COSEPAC, et des grandes
lignes du plan à suivre pour y faire face;
c) la
désignation de l’habitat essentiel de l’espèce dans la mesure du possible, en
se fondant sur la meilleure information accessible, notamment les
informations fournies par le COSEPAC, et des exemples d’activités
susceptibles d’entraîner sa destruction;
c.1) un
calendrier des études visant à désigner l’habitat essentiel lorsque
l’information accessible est insuffisante;
d) un énoncé
des objectifs en matière de population et de dissémination visant à favoriser
la survie et le rétablissement de l’espèce, ainsi qu’une description générale
des activités de recherche et de gestion nécessaires à l’atteinte de ces
objectifs;
e) tout
autre élément prévu par règlement;
f) un énoncé
sur l’opportunité de fournir des renseignements supplémentaires concernant
l’espèce;
g) un exposé
de l’échéancier prévu pour l’élaboration d’un ou de plusieurs plans d’action
relatifs au programme de rétablissement.
Rétablissement
irréalisable
(2) Si le ministre compétent conclut
que le rétablissement de l’espèce sauvage inscrite est irréalisable, le
programme de rétablissement doit comporter une description de l’espèce et de
ses besoins, dans la mesure du possible, et la désignation de son habitat
essentiel, ainsi que les motifs de la conclusion.
Plusieurs espèces ou écosystème
(3) Pour l’élaboration du programme
de rétablissement, le ministre compétent peut, s’il l’estime indiqué, traiter
de plusieurs espèces simultanément ou de tout un écosystème.
Règlement
(4) Sur recommandation faite par le
ministre après consultation du ministre responsable de l’Agence Parcs Canada
et du ministre des Pêches et des Océans, le gouverneur en conseil peut
prévoir par règlement, pour l’application de l’alinéa (1)e), les
éléments additionnels à inclure dans un programme de rétablissement.
Projet de
programme de rétablissement
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.
Liste des
espèces en péril originale
(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.
…
Destruction
de l’habitat essentiel
58. (1) Sous réserve des autres
dispositions du présent article, il est interdit de détruire un élément de l’habitat
essentiel d’une espèce sauvage inscrite comme espèce en voie de disparition
ou menacée — ou comme espèce disparue du pays dont un programme de
rétablissement a recommandé la réinsertion à l’état sauvage au Canada :
a) si
l’habitat essentiel se trouve soit sur le territoire domanial, soit dans la
zone économique exclusive ou sur le plateau continental du Canada;
b) si
l’espèce inscrite est une espèce aquatique;
c) si
l’espèce inscrite est une espèce d’oiseau migrateur protégée par la Loi de
1994 sur la convention concernant les oiseaux migrateurs.
Zone de
protection
(2) Si l’habitat essentiel ou une partie de celui-ci se trouve dans
un parc national du Canada dénommé et décrit à l’annexe 1 de la Loi sur
les parcs nationaux du Canada, une zone de protection marine sous le
régime de la Loi sur les océans, un refuge d’oiseaux migrateurs sous
le régime de la Loi de 1994 sur la convention concernant les oiseaux
migrateurs ou une réserve nationale de la faune sous le régime de la Loi
sur les espèces sauvages du Canada, le ministre compétent est tenu, dans
les quatre-vingt-dix jours suivant la mise dans le registre du programme de
rétablissement ou du plan d’action ayant défini l’habitat essentiel, de
publier dans la Gazette du Canada une description de l’habitat
essentiel ou de la partie de celui-ci qui se trouve dans le parc, la zone, le
refuge ou la réserve.
Application
(3) Le paragraphe (1) s’applique à l’habitat essentiel ou à la
partie de celui-ci visés au paragraphe (2) après les quatre-vingt-dix jours
suivant la publication de sa description dans la Gazette du Canada en
application de ce paragraphe.
Application
(4) Le paragraphe (1) s’applique à l’habitat essentiel ou à la
partie de celui-ci qui ne se trouve pas dans un lieu visé au paragraphe (2),
selon ce que précise un arrêté pris par le ministre compétent.
Obligation
: arrêté ou déclaration
(5) Dans les cent quatre-vingts jours suivant la mise dans le
registre du programme de rétablissement ou du plan d’action ayant défini
l’habitat essentiel, le ministre compétent est tenu, après consultation de
tout autre ministre compétent, à l’égard de l’habitat essentiel ou de la
partie de celui-ci qui ne se trouve pas dans un lieu visé au paragraphe (2) :
a) de
prendre l’arrêté visé au paragraphe (4), si l’habitat essentiel ou la partie
de celui-ci ne sont pas protégés légalement par des dispositions de la
présente loi ou de toute autre loi fédérale, ou une mesure prise sous leur
régime, notamment les accords conclus au titre de l’article 11;
b) s’il ne prend pas
l’arrêté, de mettre dans le registre une déclaration énonçant comment
l’habitat essentiel ou la partie de celui-ci sont protégés légalement.
|
STANDARD OF REVIEW
[51]
The
Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir)
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to the particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
Applicants’
Arguments on Standard of Review
[52]
The
Applicants submit that DFO’s decision to rely on non-statutory instruments such
as policies and ministerial discretion to provide legal protection in the
Protection Statement is reviewable on a standard of correctness. Similarly, the
Applicants contend that the Ministers’ decision to limit the Protection Order
to protect only geophysical parts of critical habitat requires review on a
standard of correctness, since it is an error of interpretation. See, for
instance, Dunsmuir, above, at paragraphs 124, 128.
[53]
The
Applicants offer the following analysis to determine the appropriate standard
of review based on the factors enumerated in Dunsmuir, above. First, the
Act contains no privative clause, which demonstrates that Parliament did not
intend to insulate decisions made under the Act from judicial review.
[54]
Second,
the purpose of the Act is to prevent at-risk species from becoming extinct and
to facilitate their survival, and section 58 of the Act is integral to
achieving the Act’s objectives.
[55]
Third,
the questions at issue involve statutory interpretation. As such, they are
clearly more within the expertise of the Court than that of government bureaucrats.
The Act is not a home statute to the Respondents. Moreover, DFO did not consult
its Recovery Team experts about either the Protection Statement or the
Protection Order. As such, the Applicants submit that it would be absurd to
award deference to either decision on the basis of expertise.
[56]
Finally,
this question involves issues of law and jurisdiction. Accordingly, a standard
of correctness ought to apply. In recent judicial review applications under the
Act, the nature of the question has been a heavily-weighed factor in
determining the appropriate standard of review. See, for example, Alberta Wilderness Association v. Canada (Minister of the Environment),
2009 FC 710, [2009] F.C.J. No., 876 (Alberta Wilderness Association) at
paragraphs 40-46; and Environmental Defence Canada v. Canada (Minister of Fisheries and Oceans), 2009 FC 878, [2009] F.C.J. No. 1052 (Environmental
Defence) at paragraphs 31 and 44. Based on the above factors, the
Applicants contend that correctness is the appropriate standard of review.
Respondents’
Arguments on the Standard of Review
[57]
The
Respondents submit that there is no justiciable issue for the Court to review
in this case and, as such, the issue of standard of review does not arise. However,
following the oral hearing of this matter in Vancouver on June 14, 2010, the
Court directed the Respondents to address the merits of the Applicants’ Protection
Statement Application. As part of their subsequent supplemental submissions the
Respondents argue that the standard of review should be reasonableness.
Appropriate
Standard of Review
[58]
I
believe that the Applicants are correct with regard to the appropriate
standards of review for issues 2 and 4.
[59]
Considering
whether the Minister of Fisheries and Oceans erred in issuing a Protection
Statement that relies on policy and other non-statutory instruments is,
essentially, an issue of statutory interpretation. More simply put, if the
Court chooses to exercise its jurisdiction to consider the first moot
application, the Court must consider whether such non-statutory instruments
fulfil the requirements to provide legal protection for critical habitat,
pursuant to subsection 58(5) of the Act. This is an issue of statutory
interpretation that should be reviewed on a standard of correctness. See Dunsmuir,
above.
[60]
I
believe that statutory interpretation is also the crux of issue 4. Consequently,
correctness is also the appropriate standard for review in determining whether the
Ministers adhered to statutory requirements in issuing the Protection Order
made pursuant to subsection 58(5) of the Act.
ARGUMENTS
The
Applicants
The Court should exercise its discretion to hear first
moot application
[61]
The
Applicants submit that the Court should hear and resolve all of the legal
issues before it, since judicial clarification of the Respondents’ duty to provide
legal protection for critical habitat will have significant effects on the
survival of all aquatic species at risk.
[62]
The
first application before the Court raises an issue of statutory interpretation:
whether policies, prospective laws, discretionary laws and provincial laws can be
said to provide legal protection for critical habitat pursuant to section 58 of
the Act. This issue was not resolved by the subsequent Protection Order issued
by the Respondents. The Applicants contend that this issue must be decided, and
declaratory relief be given to guard against future violations of section 58 of
SARA.
[63]
DFO’s
incorrect belief that section 58 protects only geospatial areas of critical
habitat arises in both applications and continues to limit the scope of the
Protection Order. Similar facts and legal issues are raised in both
applications. Accordingly, judicial resources will be well spent in resolving
the two applications simultaneously.
Hearing
a moot application
[64]
Borowski
v. Canada (Attorney General), [1989] 1 S.C.R. 342, [1989]
S.C.J. No. 14 (Borowski) at page 353 sets out a two-step test to
determine if the Court should exercise its discretion to hear a moot case:
1)
First,
has the required tangible dispute disappeared and have the issues become
academic (the live controversy test)?
2)
Second,
if the answer to (1) is yes, should the Court exercise its discretion to hear
the case even though it may have become moot?
To make its decision, the Court
must consider the presence of an adversarial context, the concern for judicial
economy, and the need for the Court to be sensitive to its role. See Borowski,
above, at pages 353, 358-363.
[65]
In
this instance, the Applicants say that the adversarial context remains present
because the parties still dispute the nature and the scope of the Respondents’
duty under section 58 of the Act. It is important for the Court to exercise its
discretion to resolve this issue because the issue might otherwise evade
review. While the Respondents also attempted to strike the Applicants’
application in Environmental Defence, above, the Court held in paragraph
2 of that case that “a review of the Minister’s decision-making under SARA
applied to the Nooksack Dace provides ample proof that the bringing of the
present Application was absolutely necessary.”
[66]
In
the case at hand, any legal uncertainty will have environmental costs. Failure
to address fully this Consolidated Proceeding would risk providing less than
full protection of critical habitat for vulnerable species. Moreover, this test
case will have implications for all aquatic species. Endangered species do not
have time to wait for DFO to “get it right.” Furthermore, not every protection
statement issued can be challenged in court. As such, other unlawful protection
statements could easily evade judicial review.
[67]
Although
the dispute in the Protection Statement Application is technically moot, the remaining
issue is squarely within the Court’s function. Because the Protection Statement
Application raises facts and issues that overlap with the Protection Order Application,
it is efficient to resolve both applications together.
[68]
If
the Protection Statement Application is not resolved, it may immunize from
judicial scrutiny DFO’s approach to protection statements. Furthermore, if the
issue remains unresolved, the Respondents will continue to rely on non-binding
policies, prospective laws and discretionary laws that do not legally protect
critical habitat. Clearly, the public interest will be served by providing judicial
guidance on the nature and scope of the Respondents’ duty under section 58 of the
Act.
Minister’s
duty
[69]
The
Applicants submit that section 58 imposes on both Respondent Ministers a duty
to provide legal protection against destruction for all components of a
species’ critical habitat. Justice Campbell in paragraphs 4, 45-46, 58 of Environmental
Defence, above, determined that critical habitat encompasses not only a
defined geographic area but also a set of essential components. The Applicants
contend that, in the context of the Act, the destruction of critical habitat
includes the destruction of the features and components of that habitat.
Recovery
Strategy
[70]
The
Federal Court has held that it is mandatory to identify critical habitat in a
recovery strategy; it is the Minister’s duty to identify both the location and
components of critical habitat. See Alberta Wilderness Association,
above, at paragraphs 24-25 and Environmental Defence, above, at
paragraph 61.
[71]
In
the instance case, the Recovery Strategy identifies critical habitat as including
areas in coastal waters where the Resident Killer Whales concentrate to feed on
salmon. The presence and availability of salmon is a feature of this critical
habitat. The Recovery Strategy also identifies key threats to components of the
critical habitat, including reduced availability of prey, environmental
contaminants, and physical and acoustic disturbance. It is important that any
measure taken under the Act fully and adequately addresses each of these components.
Protection
Statement
Protection Statement is unlawful
[72]
The
Applicants submit that the Protection Statement made by the Minister of
Fisheries and Oceans is unlawful because it relies on non-statutory
instruments, provincial laws, prospective laws and discretionary laws to
protect critical habitat.
[73]
The
Applicants contend that a provision contained in a protection statement issued
under subsection 58(5)(b) must meet the following criteria:
a.
It
must be a legal provision;
b.
It
must be a federal law (with the exception of section 11 conservation
agreements);
c.
The
legal protection relied on must be in force at the time the protection
statement is issued;
d.
Because
the legal protection acts as a substitute for the prohibition in section 58(1)
of SARA, it must be a mandatory and enforceable prohibition;
e.
The
legal provisions must protect all components of the critical habitat.
[74]
Within
the statutory scheme of the Act, a protection statement can act as a substitute
for a protection order. As such, the provisions cited within a protection
statement are intended to provide the same protection for critical habitat as
would the provisions of a protection order.
[75]
Parliament
clearly intended that habitat protection be mandatory and meaningful and did
not leave it to ministers to choose whether or not to protect critical habitat.
In the first reading of Bill C-5, section 58 was weaker and offered more
discretion: see Bill C-5, An Act respecting the protection of wildlife
species at risk in Canada, 1st session, 37th
Parliament (1st reading, 2 February 2001). However, some Parliamentarians
objected to this discretion and pushed for mandatory protection of critical
habitat. Consequently, amendments were proposed to strengthen protection for
critical habitat, and these are reflected in section 58 in its current form.
[76]
For
a protection statement to act as a substitute for the mandatory enforceable
legal protection of a protection order, the legal provisions cited in a
protection statement must be mandatory and enforceable. However, the Protection
Statement issued by the Minister in the present case cites numerous
non-statutory instruments, including:
a.
code
of conduct and outreach initiatives;
b.
whale-watching
guidelines;
c.
statement
of practice regarding the mitigation of seismic sound in the marine
environment;
d.
sensitive
benthic areas policy;
e.
wild
salmon policy;
f.
integrated
fisheries management plans; and
g.
military
sonar protocols.
These instruments are not laws that
legally protect critical habitat from destruction; rather, they are policies,
which cannot bind the Minister and do not compel behaviour. See Ahousaht Indian
Band v. Canada (Attorney General), 2009 BCSC 1494, [2009] B.C.J. No. 2155 (Ahousaht
Indian Band) at paragraph 752; and Arsenault v. Canada (Attorney General),
2009 FCA 300, [2009] F.C.J. No. 1306 (Arsenault) leave to appeal to the
S.C.C. requested, at paragraphs 33, 38, 43.
[77]
In
a few rare cases a guideline or a policy has been given legal effect by a
court. However, in these instances the enabling statute mandated the issuance
of the policy, making it a mandatory policy. Furthermore, a prohibition attaches
for failure to follow such a policy. See, for example, Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, [1992] S.C.J.
No. 1 (Oldman River) at paragraphs 33, 36-37 and Glowinski v. Canada (Treasury Board), 2006 FC 78, [2006] F.C.J. No. 99 (Glowinski) at paragraphs 40
and 43. This is not the case with the policies listed in the Protection
Statement under review in this application. At the time the Protection
Statement was issued, some of the policies it cited were not yet finalized or
implemented. Moreover, some of the policies are simply not applicable to the
Resident Killer Whales’ critical habitat.
[78]
The
Applicants submit that a protection statement also cannot cite prospective
laws, since provisions that rely on the prospective exercise of legislative
authority cannot, and do not, legally protect until that authority is
exercised. This finding has been upheld by the U.S. Federal Court in Greater
Yellowstone Coalition Inc. v. Christopher Servheen, 672 F. Supp. 2d 1105, 2009
U.S. Dist. LEXIS 111139 (Greater Yellowstone Coalition) at pages14-16
in which the Court held that “[p]romises of future, speculative action are not
existing regulatory mechanisms.” In the present case, the Protection Statement
erroneously relies on speculative or future regulatory action to protect critical
habitat under subsection 58(5) of SARA.
[79]
The
legal provisions cited in a protection statement must be mandatory and
enforceable. While the prohibition in subsection 58(1) is engaged by a
protection order, so too are sections 73 and 74, which limit the Minister’s
ability to issue any permit that will affect critical habitat. Indeed, the Act
provides that no permits can be issued that could jeopardize the survival and
recovery of the species.
[80]
Furthermore,
the provisions cited in the Protection Statement grant a broad, unstructured
discretion to permit harmful activities, including those that would destroy
critical habitat. Discretionary protection does not legally protect critical
habitat from destruction, since it is neither mandatory nor enforceable.
[81]
The
Protection Statement also listed the Fisheries Act, R.S.C. 1985,
c. F-14, the Canadian Environmental Assessment Act, S.C. 1992, c. 37
(CEAA) and provincial laws as providing protection to the population in
question. Each of these are addressed as follows, by the Applicants.
Fisheries Act
[82]
The
Applicants say that a proper evaluation of whether the Protection Statement
meets the legal standard required pursuant to section 58 of SARA demands a
comparison between the legal provisions that the Statement cites and the
protection provided by SARA. The Applicants submit that there is a clear difference
between the legal protection afforded critical habitat under subsection 58(1)
of SARA and the broad discretion under the Fisheries Act.
[83]
While
the Fisheries Act and its associated regulations are designed to protect
critical habitat, the regulatory scheme under the Fisheries Act is highly
discretionary. Furthermore, this discretion is not limited by policy or plans.
See, for example, Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548,
[1997] F.C.J. No. 1811 (Carpenter Fishing Corp.)(F.C.A.) at
paragraphs 35 and 37 and Ahousaht Indian Band, above, at paragraph 752.
[84]
The
Applicants draw particular attention to sections 35 and 36 of the Fisheries
Act, which allow DFO a much broader discretion to authorize habitat
destruction than is allowed under SARA. See, for example, Janice Walton, Blakes
Canadian Law of Endangered Species (Toronto: Carswell, 2007) at pp. 2-31 to
2-33. Indeed, sections 35 and 36 of the Fisheries Act prohibit only
unauthorized destruction of fish habitat, while SARA prohibits any destruction
of critical habitat. According to the Applicants,
SARA’s permitting provisions limit activities that
could affect critical habitat and preclude authorization of any activity that
could jeopardize survival and recovery of the species. The s. 58(1) prohibition
against destruction of critical habitat applies to all critical habitat and
against any activity that might destroy it.
[85]
While
it is possible to use the Fisheries Act to provide legal protection for
critical habitat, the Applicants contend that no such action has been taken. As
such, the Applicants contend that, absent a specific regulation protecting
critical habitat, the Fisheries Act cannot lawfully substitute for an
order under SARA.
Canadian Environmental Assessment Act
[86]
The
Protection Statement also relies on the Canadian Environmental Assessment
Act (CEAA) to provide legal protection for critical habitat. However, the
CEAA is largely a procedural statute that sets out a series of steps to be
taken before projects may proceed at the discretion of the Minister. Consequently,
the CEAA does not prohibit approval of environmentally destructive projects.
Provincial laws are not laws of Parliament
[87]
Section
58 of the Act requires that critical habitat be protected under a “Law of
Parliament,” or, in the alternative, under a section 11 conservation agreement.
As such, provincial laws and municipal laws should not be cited in a protection
statement.
Protection Statement fails to protect all components
[88]
The
Protection Statement is unlawful because it provides legal protection for only
certain elements or components of critical habitat. In so doing, it fails to address
the most significant threats to critical habitat, including reduction in the availability
of prey, toxic contamination, and physical and acoustic disturbance.
[89]
The
first part of the Protection Statement purports to protect the “geospatial and
geophysical attributes” of the critical habitat against threats from industrial
activity, destructive fishing gear and vessel anchors. According to the
Recovery Strategy, these threats are not the most significant to critical
habitat, and yet they are the only activities for which the Protection
Statement cites the legislation, regulations and/or policies to be used to protect
the critical habitat.
[90]
The
second part of the Protection Statement addresses degradation of the acoustic
environment, degradation of marine environmental quality and declining
availability of prey. It attempts to address these issues by listing tools that
are, according to the Protection Statement, “available to manage and mitigate
threats to [ecosystem] functions.” The Applicants submit that the division between
the first and second parts of the Protection Statement reflects the unlawful
policy distinction, which recognizes DFO’s duty to protect geophysical
components but ignores its duty to protect biological components of critical
habitat.
Protection Order
[91]
The
Applicants say that in creating a limited Protection Order that includes
geophysical areas of critical habitat but excludes identified components of the
critical habitat, the Respondent Ministers have implemented an unlawful policy and
thereby have failed to respond to a duty assigned them by statute. See, for
example, Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, [1980] S.C.J. No. 99.
[92]
The
Federal Court determined in Environmental Defence, above, that such
policies are unlawful. Accordingly, the Court ought to confirm that section 58
of the Act requires legal protection of all components of critical habitat.
Interpretation of section 58
Bilingual interpretation
[93]
The
Applicants contend that the proper interpretation of section 58 of the Act
obliges the Respondents to ensure legal protection of all of the
components of critical habitat. This interpretation is supported by numerous
grounds, including a plain language examination of that section as well as the
French version of section 58 and the case of Environmental Defence,
above.
[94]
The
creation of a protection order under subsections 58(4) and (5) triggers the subsection
58(1) prohibition against the destruction of critical habitat. The Applicants
contend that the proper construction of the phrase “any part of the critical
habitat” in subsection 58(1) includes any component of the critical
habitat, since it is the combination of each component that makes up the
critical habitat as a whole.
[95]
In
this case, the Resident Killer Whales’ critical habitat consists of prey
availability, unpolluted water and a quiet environment. Indeed, the Recovery Strategy
and other government publications note that these habitat components are
necessary for the survival of the species.
[96]
The
term “part” in subsection 58(1) may be interpreted to mean “component.” See,
for example, Merriam-Webster’s Collegiate Dictionary, 10th
ed., s.v., at “component.” Moreover, section 58 uses the word “part”
differently from the way it uses the word “portion.” According to the Applicants,
where Parliament intends to refer to a geospatial portion of critical habitat –
so as to denote a sub-area – it refers to a “portion of the critical habitat”:
see subsections 58(2)-(4). However, Parliament uses the word “part” in subsection
58(1) to refer to a constituent element or component.
[97]
Furthermore,
the French version of section 58 of the Act requires legal protection of all components
of critical habitat. Accordingly, a bilingual interpretation of section 58
demonstrates that the Respondents’ duty includes the protection of all
components of the habitat. According to the Supreme Court of Canada in R. v.
Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217 at paragraph 28,
[w]e must determine whether there is an ambiguity,
that is, whether one of both versions of the statute are “reasonably capable of
more than one meaning”… . If there is an ambiguity in one version but not the
other, the two versions must be reconciled, that is, we must look for the
meaning that is common to both versions… . The common meaning is the version
that is plain and not ambiguous [citations omitted].
[98]
When
this approach is applied to the interpretation of subsection 58(1) of SARA it
becomes clear that the common meaning between both versions is a prohibition
against the destruction of the components of critical habitat. While the
English version of the Act states that no person shall destroy any part of the
critical habitat, the French version states that “il est interdit de détruire
un élément de l’habitat essentiel.” “Élément” is defined in Le
Nouveau Petit Robert, 2002 as “Partie constitutive d’une chose. 1. Chacune
des choses dont la combinaison, la réunion forme une autre chose.” Furthermore,
in a leading French-English dictionary, “élément” is translated to mean “component.”
See Le Robert & Collins Dictionnaire Français-Anglais, 4e
ed., and Collins Robert French Dictionary, 7th ed., s.v.
“élément.”
[99]
Although
“part” may be capable of being construed in more than one way within subsection
58(1), “élément” is not; rather, “un élément” refers to one of the number of
constituent parts or components that, in combination, form a whole.
[100] This
interpretation is further supported by the broad structure of section 58. The
French version of section 58 of the Act uses the term “partie” rather than “élément”
to make reference to a sub-area or portion of critical habitat. In subsections
58(2)-(4), the word “partie” is consistently used as the French counterpart to
the English word “portion.”
[101] It
becomes clear in applying bilingual interpretation principles that the common
meaning of “any part” and “un élément” includes all integral components of a
species’ critical habitat.
The Case of Environmental Defence
[102] The
Applicants submit that section 58 of the Act must be given a purposive
interpretation that ensures meaningful legal protection, as occurred with
paragraph 41(1)(c) of SARA in Environmental Defence, above. Justice
Campbell held in Environmental Defence that critical habitat is not just
a geospatial area. Rather, Justice Campbell determined at paragraphs 57-66 that
when identifying a species’ critical habitat, the Minister must identify both
the location of the habitat as well as its essential attributes or features.
Identification of the components of critical habitat is undertaken to ensure
that these components are later legally protected under the Act.
[103] At
paragraph 53 of Environmental Defence, Justice Campbell examined
the relationship between the identified components of critical habitat and its
geospatial coordinates:
Except perhaps by nuclear Armageddon, one
cannot destroy a place in its entirety. Nor can one destroy a set of geospatial
co- ordinates. Rather, the destruction of critical habitat involves destruction
of the components of that habitat. Put concretely, to destroy a spotted
owl’s habitat involves clear-cutting the old- growth forest it relies on for
food and protection from predators. To destroy an endangered frog’s habitat may
involve filling and paving a wetland and placing a shopping mall atop it. To
destroy the Nooksack Dace’s habitat could involve removal of riparian
vegetation, which the dace rely on to regulate temperature, erosion, and
pollution; or removing water from the streambed. Clear- cutting trees, filing
wetlands and draining streams does not destroy the location; rather, it
destroys the features and components that were relied on by
endangered species.
[104] Moreover,
in making his decision, Justice Campbell considered the Convention on
Biological Diversity, 5 June 1992, 1760 U.N.T.S. 79, 31 I.L.M. 818 (entered
into force 29 December 1993) and determined that critical habitat should be
interpreted to include both its physical and biological features so as not to
put Canada in breach of its international treaty obligations (paragraphs 38-39,
55, 62). Because the Act was created in part to implement Canada’s commitments under the Convention on Biological Diversity, the Act should be
interpreted in harmony with the treaty’s values and principles.
Unlawful limitation of the scope of the Protection
Order
[105] The Applicants
contend that the evidence before the Court, including the Regulatory Impact
Analysis Statement (RIAS) in both official languages and DFO’s conduct and
positions before and after the issuance of the Protection Order, demonstrates
that the Respondents have unlawfully limited the scope of the Protection Order.
[106] The
RIAS demonstrates the Respondents’ decision to limit the Protection Order to
protect only “geophysical area” of critical habitat:
Critical habitat for the Northern and Southern Resident Killer
Whales was identified in the Final Recovery Strategy posted on March 14, 2008
on the SARA Public Registry. The Recovery Strategy identifies at section 3 the
critical habitats as defined geophysical areas where these populations
concentrate. In addition, … DFO recognizes that other ecosystem features such
as the availability of prey for foraging and the quality of the environment are
important to the survival and recovery of Northern and Southern Resident Killer
Whales.
[107] This
passage of the RIAS demonstrates both an error of law and an error of fact.
[108] While
the Respondents characterize their legal obligation as extending only as far as
protecting “geophysical areas,” they acknowledge that there are biological,
acoustic and chemical components of critical habitat. However, despite
recognizing component features, the Respondents do not extend legal protection to
these features. This is an error of law.
[109] Also,
the Respondents do not properly understand the Recovery Strategy. One cannot argue
that the Recovery Strategy, as a whole, identifies critical habitat as only an
area. This is an error of fact.
[110] A
comparison of the French and English versions of the RIAS demonstrates that the
Respondents have misconstrued section 58 of SARA and, consequently, have misunderstood
their duty under this section.
[111] Furthermore,
prior to the publication of the Protection Order DFO exerted bureaucratic
pressure to weaken the legal protection of critical habitat and remove references
to ecosystem features of critical habitat.
[112] The
Respondents’ position that critical habitat is only a geospatial location did
not change after the Protection Order was published, a position that DFO maintained
in Environmental Defence, above. This reflects DFO’s legally incorrect
understanding of the scope of its duty under section 58 as well as the
Respondents’ intention to limit the Protection Order so as not to cover all
physical and biological components of the critical habitat.
The Respondents
[113] The
Respondents contend that the Protection Order provides the Resident Killer
Whales with the protection they require. No greater protection will be provided
if the Court considers the moot Protection Statement, and there is nothing for
the Court to review with regard to the Protection Order.
Court
should not exercise its jurisdiction
[114] Because
Justice O’Reilly determined that the Protection Statement is moot, the Court
must now decide whether the first application made by the Applicants is so
exceptional that it justifies a departure from the general practice of striking
moot cases. It is the Applicant’s burden to demonstrate that this is the case.
See Maystar General Contractors Inc. v. International Union of Painters and
Allied Trades, Local 1819, 2008 ONCA 265, [2008] O.J. No. 1353 at paragraph
32.
[115] The
Respondents submit that the adversarial context required by Borowski,
above, does not exist in this case. There is no longer any live issue with respect
to the Protection Statement since it has been replaced by the Protection Order.
The fact that the Applicants believe that they have an adversarial relationship
with the Minister of Fisheries and Oceans is not an adequate reason for the
Court to hear a moot case; rather, there must be consequences arising from the
moot proceeding that justify hearing the matter. As stated by Justice Rothstein
in Merck Frosst Canada Inc. v. Canada (Minister of National Health and
Welfare) (1997), 128 F.T.R. 222, [1997] F.C.J. No. 347 (F.C.T.D.) at
paragraph 15,
[t]he continuing adversarial relationship does not
simply mean that the parties are competitors or that they do not like each
other or that there is other litigation pending between them. The adversarial
relationship that must prevail must have some logical nexus to the proceedings
that have become moot.
In this instance, there is no
logical nexus between any adversarial relationship that the Applicants believe
exists and the Protection Statement Application, which has been deemed to be
moot.
[116] There
are no special circumstances in this case to justify the investment of further
judicial resources. Because the Protection Order contains a prohibition against
the destruction of critical habitat, the Court’s decision on the Protection
Statement Application will have no practical effect on the rights or
obligations of the parties. The Protection Order is broad, and declarations
with regard to the tools outlined in the Protection Statement will not impact
the protection provided by the Protection Order.
[117] The
circumstances leading to the Protection Statement Application are unique and fact-specific.
Likewise, each future protection statement made pursuant to SARA will be unique
to the species at issue.
[118] Moreover,
the Protection Statement Application is not one that is recurring in nature and
evasive of the Court’s review. As the Court in Borowski, above,
determined at pages 360-361, the mere fact that a case raising the same point
may recur is not by itself sufficient reason to hear an appeal that is moot. Rather,
it must be demonstrated that the “circumstances suggests that the dispute will
have always disappeared before it is ultimately resolved.”
[119] Finally,
abstract pronouncements of rights or obligations are not in the public interest
since they do not promote judicial economy or orderly and incremental
development of the law. There is no public interest in resolving issues with
regard to the Protection Statement when it has already been replaced by the
Protection Order.
Protection Statement
[120]
In
their initial materials the Respondents did not provide the Court with evidence
or argument dealing with the merits of the Applicants’ position on the unlawful
nature of the Protection Statement. Following the hearing, the Court decided
that it was impossible to address the Respondents’ mootness and jurisdiction
arguments without a full debate on the merits of the Protection Statement
Application. The Court directed the Respondents to provide written submissions
and the Applicants to provide any reply in writing. The Respondents submissions
on the merits as contained in their Supplemental Written Submissions are set
out below.
[121]
The Respondents say that the instruments relied
upon in the Protection Statement provide “legal protection” as that term is
intended to be interpreted under SARA.
[122]
Under section 58(5) of SARA, Parliament has
given the Minister the option of issuing a protection order, which prohibits
the destruction of critical habitat, or a Protection Statement, which
enumerates other statutory and non-statutory instruments that prohibit such
destruction. Parliament’s purpose in so doing was to provide flexibility with
respect to the manner in which critical habitat protection is achieved.
Although the “provisions in, and measures under” other Acts of Parliament,
which are enumerated in a Protection Statement, may provide protection in a
manner different from that of a protection order, this violates no requirement
under SARA. The protection is equally effective unless proven otherwise.
[123]
The Applicants’ argument that such “provisions”
and “measures” must be “legal provisions” or “federal laws” that provide
protection in the form of a “mandatory, enforceable prohibition against
destruction” renders meaningless the flexibility Parliament so clearly intended
to provide the Minister under section 58(5)(b). That this intention has
meaning is confirmed by the notable absence of such flexibility in other SARA
provisions.
[124]
The Respondents argue that non-statutory
instruments can also function as “provisions in, and measures under” other Acts
of Parliament within the meaning of section 58(5). For example, sections 57 and
58 of SARA include section 11 agreements as an example of instruments that can
be used to protect critical habitat. Section 11 agreements, as non-statutory
instruments, are not “federal laws,” as the Applicants suggest all instruments
included in a protection statement must be. Their inclusion as examples in
section 57 and 58 evidences Parliament’s intention that the “provisions” and
“measures” relied upon in a protection statement can take a different form that
the protection provided by the prohibition against destruction that would be
contained in a protection order. That Parliament includes these non-statutory
instruments among the “provisions” and “measures” that may be relied upon
indicates a flexible approach.
[125]
In addition, section 56 provides that codes of
conduct, policies and guidelines may also be used to protect critical habitat.
The Applicants’ assertion that such instruments cannot be relied upon because
they do not “legally protect” critical habitat assumes that legal protection is
available only through a “mandatory, enforceable prohibition against
destruction.” However, the above examples taken from SARA indicate, first, that
such instruments need not take the form of a “mandatory, enforceable
prohibition against destruction”; and, second that lack of enforceability is
not relevant to a determination as to whether such instruments legally protect
critical habitat.
[126]
Moreover, the Respondents argue, the possibility
that such “provisions” and “measures” may be altered in future does not affect
the validity of the Protection Statement. Section 35 of the Fisheries Act
protects the critical habitat of killer whales. The fact that the Minister has
discretion under section 35(2) of that statute to authorize activities that
destroy critical habitat does not negate the fact that, until such
authorization occurs, section 35 provides protection and that this protection
can be relied upon in a protection statement. There is no evidence that such
authorization has occurred. Similar logic applies to the protection set out in
section 36 of the Fisheries Act.
[127] The Fisheries Act and Regulations respecting fisheries
activity protect killer whale prey and geophysical habitat. The issuance of
licences and the opening and closing of fisheries are “measures under” an Act
of Parliament. A protection statement relying upon these measures would fail to
satisfy the requirements of paragraph 58(5)(b) only if the Minister exercised
his or her discretion not to limit fishing, resulting in the destruction of
available killer whale prey. There is no evidence that the Minister’s
discretion has been exercised in such a way.
[128] Finally, the Respondents argue that the question of whether the
instruments relied upon in a protection statement provide the protection
required under section 58 of SARA is one of mixed fact and law and therefore
attracts a reasonableness standard.
Protection Order application is misguided
[129] The
Respondents say that it is unclear in the Protection Order Application what
exactly the Applicants seek to have judicially reviewed. Because the majority
of the Applicants’ arguments concern the Protection Statement Application, it
appears that the second Protection Order Application is simply an attempt to
keep moot issues before the Court.
[130] While
the Applicants appear to be seeking judicial review of the Protection Order,
they do not seek to quash it or set it aside. Instead, the Applicants are
seeking declarations to prevent the Protection Order from being applied in a
particular manner. Such declarations are inappropriate and beyond the jurisdiction
of the Court.
[131] The
Protection Order is a regulation within the meaning of the Statutory
Instruments Act, R.S.C. 1985, c. S-22. Subsection 2(1) of that Act states
that all orders “made in the exercise of a legislative power conferred by or
under an Act of Parliament” are regulations. Accordingly, the Protection Order
made under subsections 58(4)-(5) of the Act is a regulation.
[132] The
content of regulations is legislative in nature when it embodies a rule of
conduct, has the force of law and affects an undetermined number of persons, or
where the regulation is a component of a series of instruments which do so. See
Sinclair v. Quebec (Attorney General), [1992] 1 S.C.R. 579, [1991]
S.C.J. No. 76 at paragraph 15 (QL) (Sinclair).
[133] In
this case, the Protection Order completes the statutory scheme by creating a
prohibition against the destruction of any part of the critical habitat,
pursuant to section 58(1) of SARA. Because the content of this regulation is
intimately connected to the legislation, it is legislative in nature. See, for
example, Sinclair, above, at paragraphs 14-18.
[134] Because
the Protection Order is a regulation and its content is legislative in nature,
the Court is limited to considering whether it was within the authority of the
Ministers to make the order and whether it offends the Canadian
Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11 (Charter): see Dixon v. Canada (Governor in
Council), [1997] 3 F.C. 169, [1997] F.C.J. No. 985 at paragraph 17.1.
[135] The
Applicants do not allege that the Protection Order was ultra vires or
that it offends the Charter. Rather, they seek declarations that the Ministers
are acting unlawfully in limiting the application and the scope of the
Protection Order. However, the Court cannot review the content of the
Protection Order beyond the issues of vires and Charter compliance without
infringing on parliamentary sovereignty; jurisprudence has held that review of
the content of validly enacted legislation is undertaken only by the
electorate. See Amax Potash Ltd. v. Saskatchewan, [1977] 2 S.C.R. 576,
[1976] S.C.J. No. 86.
[136] Subsection
58(5) of the Act provides that an order can be made “with respect to all of the
critical habitat or portion of the critical habitat that is not in a place
referred to in subsection (2).” In this instance, as noted by the Applicants,
“portion” refers to a geographical portion. Consequently, a protection order is
required to specify the geographic area to which it applies. Because none of
the critical habitat in the case at hand is referred to in subsection 58(2),
the Protection Order specifies the entire area of the critical habitat.
[137] The
Protection Order does not define critical habitat; rather, it specifies the
portion of the critical habitat to which the subsection 58(1) prohibition
applies. The Act provides that critical habitat must be identified in a
recovery strategy or an action plan. This is made clear in the definition of
critical habitat which is habitat “…that is identified as the species’ critical
habitat in the recovery strategy or in an action plan for the species.” Issuing
an order under subsections 58(4)-(5) does not change the critical habitat
identified in these documents.
Future intentions
[138] Unable
to challenge the Protection Order, the Applicants have instead attempted to
challenge what they believe to be the intentions of the Respondents with regard
to the subsection 58(1) prohibition. This is reflected in the Applicants’
arguments, which focus heavily on subsection 58(1), despite the fact that the
Protection Order was issued under subsections 58(4)-(5).
[139] The Respondents
submit that the Protection Order neither contains the prohibition against
destruction nor identifies critical habitat. Instead, the Protection Order
specifies the portion of the critical habitat to which the prohibition against
destruction applies, that is, the physical part. It is subsection 58(1) that
contains the prohibition, and not the Protection Order itself. Similarly, it is
the Recovery Strategy that identifies the critical habitat, and not the
Protection Order.
[140] The
Applicants argue that the Ministers unlawfully excluded the ecosystem features
of the critical habitat from the scope of the Protection Order; however, this
is not possible. What is prohibited is determined on the basis of the interaction
of subsection 58(1) with the critical habitat as identified in the Recovery
Strategy, and not by the Protection Order. In this case, it is the application
of the prohibition with which the Applicants take issue. However, their
arguments are based on speculation and vague evidence that the Respondents will
apply the Protection Order in a way that the Applicants believe is unlawful. While
the Applicants attempt to rely on the conduct of the DFO officials before the
Protection Order was issued, this conduct is irrelevant. Meanwhile, the
Applicants’ arguments with regard to the RIAS fail to examine and appreciate
the document as a whole.
[141] At
the time the Protection Order was issued and the RIAS was published, the nature
of critical habitat was being considered in Environmental Defence,
above. Environmental Defence made it clear that the prohibition in
subsection 58(1) of the Act applies to the attributes of critical habitat
identified in the Recovery Strategy. It is unreasonable for the Applicants to
assume, now that Environmental Defence has been issued, that the
Respondents intend to simply ignore the Court’s decision on this issue.
Lack of jurisdiction
[142] Without
being requested to review the decision to issue the Protection Order, the Court
does not have jurisdiction to grant the declaratory relief that the Applicants
seek in the Protection Order Application. The Federal Court is a creature of
statute and must find a statutory grant of jurisdiction. See ITO - International
Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752,
[1986] S.C.J. No. 38 (QL) at paragraph 11. The Federal Court has the power to
declare a “decision, order, act or proceeding” to be unlawful: see subsection
18.1(3) of the Federal Courts Act, R.S.,
1985, c. F-7.
However, the Applicants do not seek to have the Protection Order declared unlawful
nor have they identified any other decision, act or proceeding which they seek
to have declared unlawful.
[143] Moreover,
although the Applicants have challenged the Ministers’ decision to apply the
allegedly unlawful policy to limit the application of the Protection Order, the
Applicants have identified no occasion on which the Protection Order has been so
applied.
[144] In
the absence of a challenge to a decision, order, act or proceeding, the Court
lacks jurisdiction to issue the declarations requested.
Improper submissions
[145] The
Respondents submit that the affidavit of Dr. Scott Wallace includes “outdated
evidence, opinion and argument and portions of it are clearly improper and
should be given no weight.” What is more, the Applicants have attempted to submit
a number of documents as secondary material. However, this should have been put
into evidence through an affidavit, since not doing so has prevented the
Respondents from filing evidence in response. Consequently, these documents should
be disregarded.
Applicants’ Reply
[146] Following
the Respondents’ written submissions on the merits of the Applicants’
allegations, the unlawfulness of the Protection Statement, the Applicants
provided the Court with a written reply. The Applicants’ submissions in this
regard are set out below.
[147]
The Applicants argue that the modern approach to
statutory interpretation supports their interpretation of section 58(5)(b) of
SARA. The words of that section, read in their ordinary meaning and in a manner
that is harmonious with the scheme and object of the Act and the intention of
Parliament, indicate the criteria that a provision of a Protection Statement
must meet. First, it must be a legal provision. Second, excepting section 11
agreements, it must be a federal law. Third, it must be in force when the
Protection Statement is issued. Fourth, the protection offered by the provision
must be a substitute for the prohibition against destruction set out in section
58(1); in other words, it must be mandatory and enforceable. Fifth, the provisions
together must protect all components of critical habitat. As the Respondents
have conceded the second, third and fifth criteria, the Applicants’ submissions
address the first and fourth criteria.
[148]
The provisions in a Protection Statement must be
“legal provisions.” The term “legal provision” is used by the Applicants to
mean any provision that sets a standard for conduct that can be understood by
the public and that must be followed, enforced and interpreted by a court in
the case of conflict. Since the purpose of a Protection Statement is to set out
how other provisions act in lieu of the legal protection provided by section
58, it follows that such provisions must also be “legal provisions.”
[149]
In addition, section 58 expressly requires a
Protection Statement to set out how the listed provisions “legally” protect
critical habitat. The Respondents point out that section 58(5)(a) includes
section 11 conservation agreements as among the provisions that may be cited in
a Protection Statement. The Applicants submit that this inclusion is consistent
with their argument because conservation agreements are legal “measures” under
an Act of Parliament.
[150]
The legal protection relied on in a Protection
Statement must act as a substitute for the protection in section 58(1); in
other words, it must provide nothing less than a mandatory, enforceable
prohibition against the destruction of critical habitat. Contrary to the
Respondents’ arguments, discretionary provisions of statutes of general
application are insufficient to meet the requirement under section 58.
[151]
Section 58 provides two different means for
achieving the same end, which is the securing of meaningful and enforceable
legal protection for critical habitat. Contrary to the Respondents’ argument,
Parliament did not intend flexibility with respect to the standard or rigor of
that protection. The Respondents posit that there are two different levels of
protection, which leaves open the possibility that the Minister could choose to
allow critical habitat to be destroyed. This interpretation was clearly
rejected by Parliament and is contrary to the purpose of SARA and its
legislative history. Where Parliament intends less than mandatory protection,
as in section 63 of SARA, its intention is express. No such intention is evident
in the case of section 58.
[152] The Respondents argue that sections 35 and 36 of the Fisheries
Act protect critical habitat and that the Fisheries Act and its
Regulations governing fishing activity protect killer whale prey availability
and geophysical habitat components. However, only section 35 of the Fisheries
Act and section 22(1) the Fishery (General) Regulations are listed
in the Protection Statement. Otherwise, the Protection Statement refers only
generally to provisions of Fisheries Act and the Regulations. The
Applicants argue that such vague and non-specific references fail to discharge
the Respondents’ duty under section 58(5)(b) to “set out how” the provisions
therein legally protect both critical habitat and the availability of prey for
killer whales. Further, the protection available under section 35—a provision
which grants to the Minister a broad discretion to destroy critical
habitat—could never be considered an equally effective alternative to the
protection available under a section 58(1) Protection Order. In short, the
Minister cannot rely on her absolute discretion to manage the fishery to
discharge her duty to protect a component of critical habitat.
[153] Finally, the Applicants argue that they are asking this Court to
interpret the statutory requirements of a Protection Statement under section
58(5)(b) and to find that the Respondents lack the jurisdiction to rely on
policy and discretion in providing “legal protection” for critical habitat.
This raises a question of law. The Applicants submit that the appropriate
standard of review is correctness.
ANALYSIS
General
introduction
[154] I
have before me two consolidated applications for judicial review both of which
are concerned with the obligations of the Respondents under section 58 of SARA
to provide legal protection for the critical habitat of the Resident Killer
Whales.
[155] The Applications
are the result of a continuum of dealings between the Applicants and the
Respondents about the proper legal interpretation of SARA and whether the Respondents
have correctly interpreted and carried out their legal obligations to protect
the Resident Killer Whales in accordance with SARA. Hence, the applications
make up a single narrative that has led to the present appearance before the
Court and they overlap significantly as regards both facts and law. Justice
O’Reilly consolidated the applications for this very reason.
[156] The
Respondents initially took a similar approach to both applications. Until
directed by the Court, they resisted on mootness and jurisdictional grounds
rather than challenge the facts or confront the merits directly. As the
proceedings unfolded before me, however, it became apparent that the
Respondents do not take issue with many of the points made by the Applicants on
the merits. They say, however, that the Court should not exercise its
discretion to hear the Protection Statement Application because it has been
adjudged moot and there are no grounds to consider a moot application in this
case.
[157] As
regards the Protection Order Application, the Respondents resist on the grounds
that the application is unclear, that the review of the Protection Order is
beyond the jurisdiction of the Court, that the Court is being asked to review
future intentions, and various other related grounds.
[158] What
is strange about the Respondents’ resistance to the Protection Order
Application is that, when questioned by the Court on the merits at the hearing,
the Respondents conceded important arguments made by the Applicants. This was
not their intention when the Order issued but it has come about as a result of
the clarification of the law concerning the meaning and scope of “critical
habitat” provided by Justice Campbell in Environment Defence.
[159] The
Respondents agree that the Order should now be read as the Applicants assert it
should be read, that is to cover the protection of critical habitat as the
Applicants say critical habitat should be defined for the Resident Killer
Whales.
[160] In
addition, following supplemental written submission on the Protection Statement
Application, it is apparent that much of what the Applicants say about the
content of protection statements is acceptable to the Respondents, apart from certain
fundamental points of disagreement that I will come to later.
[161] Given
the level of agreement on the merits of the Protection Order Application, the
Court cannot help but wonder why it has been resisted on technical grounds and
why the Respondents do not think the Court should deal with it. Had the
Respondents clarified their agreement on the definition of critical habitat and
corrected the relevant public documentation where a different interpretation is
evident, or at least possible, the Protection Order Application need never have
come before the Court. The fact that it has will have an impact upon the way I
deal with the exercise of the Court’s discretion to hear the Protection
Statement Application.
[162] As
regards the outstanding points of difference concerning the Protection
Statement, it is evident to me that the significance of the disagreement
between the parties means that fundamental points of legal interpretation are
very much a live issue between the parties. These points, as well as being
specific to the facts of these applications, are of importance generally for
the interpretation and application of SARA.
Protection Order application
[163] It is
my view that the Applicants’ statement of the law and their conclusions
regarding the Protection Order and its application to all components of
critical habitat are correct. Also, notwithstanding subsequent changes of
position by DFO since the Protection Order originally issued in February 2009,
the Ministers did act unlawfully in limiting the Protection Order made under subsection
58(4) of SARA. The Respondents now appear not to take issue with the Applicants’
position regarding the scope of “critical habitat,” and they say that they
recognize the implications of Justice Campbell’s decision in Environmental Defence
for this issue. Notwithstanding the Respondents’ evolving change of position on
the scope of “critical habitat,” it still seems to me that the Protection Order
was and is incorrect and unlawful because, in limiting its application to
geophysical areas, the Respondents failed to respond to a duty assigned to them
by statute, in this case, SARA. See Inuit Tapirisat, above, at page 752.
[164] The
Applicants’ interpretation of the Ministers’ duty under SARA to protect all
components of critical habitat for the Resident Killer Whales is fully
supported by the plain language of section 58 read in the full context of SARA,
the bilingual version of the section and the decision of the Court in Environmental
Defence. The relevant authorities are set out fully in the Applicants’
submissions. There is no need to repeat them here because the Respondents do
not take issue with the Applicants’ arguments on this issue.
[165] Instead,
the Respondents argue that the Court should, nevertheless, refuse to grant the
declaratory relief requested by the Applicants for a variety of reasons that I
will examine in turn.
Respondents’ grounds
[166] I
will deal briefly with each of the Respondents’ grounds for resisting the
Protection Order Application.
Application is misguided
[167] The
Respondents say that the Protection Order Application is misguided because it
is unclear what the Applicants are attempting to have reviewed and, in any
event, the Applicants are seeking declarations aimed at preventing the
Protection Order from being applied in a particular manner in the future. Such
declarations, say the Respondents, are beyond the jurisdiction of this Court.
[168] This
issue has already been identified and dealt with by Prothonotary Lafrenière. In
May 2009 the Applicants requested that the Respondents produce the record for
the Protection Order, required under Rule 317 of the Federal Courts Rules.
The Respondents posited that there was no decision at issue, and so they were
not obliged to produce a record. Prothonotary Lafrenière agreed with the
Applicants that there was a decision and ordered the Respondents to produce the
record. The Respondents did so in November 2009. Because the Court may order
production of a record under Rule 317 only if there is a “decision or order”
that is the subject of a judicial review application, it is clear that the
Court has already decided that there is a decision for review, and it is the
Protection Order. See Gaudes v. Canada (Attorney General), 2005 FC 351,
[2005] F.C.J. No. 434 at paragraphs 6, 15-19. The Respondents have not appealed
Prothonotary Lafrenière’s ruling, so that is where things currently stand.
[169] My review
of the Protection Order will address what the Applicants have characterized as
a consistent misinterpretation and misapplication of the law that has led to,
and become manifest in, the Protection Order.
[170] I will
also review the legality of the Protection Order at the time it was
promulgated. My decision will have an impact upon the future actions of the
Ministers, but this does not prevent me from reviewing the Protection Order and
declaring it to be invalid because of reviewable error.
Order cannot be challenged
[171] The
Respondents also say that because the Protection Order is a regulation within
the meaning of the Statutory Instruments Act, its content is legislative
in nature. Therefore, the Court’s jurisdiction is limited to determining
whether it was within the authority of the Ministers to make the Order or
whether it offends the Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982, being Schedule B to the Canada Act
1982 (U.K.), 1982, c. 11.
[172] In
effect, this is an argument that the Protection Order (indeed any protection
order issued under SARA) is immunized from review, other than review for
jurisdiction or Charter compliance, by the concept of Parliamentary sovereignty.
[173] In my
view, however, the Respondents are here attempting to assert ministerial
sovereignty rather than Parliamentary sovereignty. See Saskatchewan
Wheat Pool v. Canada (Attorney General) (1993), 107 D.L.R. (4th)
190 (FCTD) at paragraph 68. The Respondents have conceded that when the
Protection Order issued it was issued under a mistake of law, i.e. that
“critical habitat” was limited to geographical space. This mistake is not
evident on the face of the Protection Order, which one must read in conjunction
with the Recovery Strategy and the RIAS to understand its scope and impact. The
wording of the Recovery Strategy does reveal the mistake of law, and this is
further evidenced by the wording in the RIAS.
[174] While
conceding this mistake of law (an extremely serious mistake given the purpose
of SARA and the possible fate of the Resident Killer Whales and any other
species at risk) the Respondents suggest, in effect, that an illegal Protection
Order and the actions of the Minister in promulgating an illegal Protection
Order are beyond the review of this Court.
[175] In my
view, however, SARA is not a statute, such as the Fisheries Act, that
delegates to the Minister a broad discretion to do a wide range of things in
order to manage a national resource on behalf of all of the people of Canada. SARA is a statute that compels the competent Minister – and the Parliamentary
debates are clear on this crucial point – to act in specific ways to protect
the critical habitat of species at risk. The protection of critical habitat and
what constitutes critical habitat are not left to ministerial discretion in
SARA. If the Ministers were allowed to illegally apply SARA free of the scrutiny
of this Court, and in breach of what Parliament has said must occur, then
Parliamentary sovereignty would be replaced by ministerial sovereignty. I see
nothing in SARA or in the Parliamentary debates brought into evidence to
suggest that this was Parliament’s intention.
[176] The Executive
branch, including ministers and their delegates, is distinct from, and
subordinate to, Parliament. When the Executive is alleged not to have lawfully
performed a duty assigned to it by Parliament, the Court’s role is to interpret
the nature and scope of the statutory duty and adjudicate upon whether the Executive
has complied with its duty. Judicial review is the means by which ministers who
fail to perform their legislated duties are held to account. As stated by the
Supreme Court of Canada in Canada (Commission des droits de la personne) v.
Canada (Attorney General), [1982] 1 S.C.R. 215, at page 216, “[I]t is important
not to confuse the statute adopted by Parliament with the action of the
Executive performed in accordance with that statute.”
[177] This
position was confirmed by the Supreme Court of Canada in the leading
administrative law decision in Inuit Tapirisat (cited to S.C.R. at page
752):
[I]n my view the essence of the principle of law here operating is
simply that in the exercise of a statutory power the Governor in Council, like
any other person or group of persons, must keep within the law as laid down by
Parliament or the Legislature. Failure to do so will call into action the
supervising function of the superior court whose responsibility is to enforce
the law, that is to ensure that such actions as may be authorized by statute
shall be carried out in accordance with its terms, or that a public authority
shall not fail to respond to a duty assigned to it by statute.
[178] In
the context of SARA, Parliament charged the Respondent Ministers with a duty to
ensure that critical habitat is legally protected. The Ministers must perform
this duty in accordance with the law. While a sovereign Parliament enacted
section 58 of SARA, the Ministers are subordinate to Parliament when they
perform their section 58 duties.
[179] The
Respondents support their argument with the uncontroversial submission that the
Protection Order is designated as a “regulation” under the Statutory
Instruments Act. In my view, however, there is no principle of law stating that
an enactment covered by the Statutory Instruments Act is unreviewable.
[180] The
Respondents further submit that, because the Protection Order is a regulation,
it becomes “legislative in nature” and, therefore, this Court cannot review it
without violating Parliamentary sovereignty. The Respondents’ analysis of the
“legislative nature” of section 58 decisions is based on Sinclair v. Quebec
(Attorney General), above, and Reference re Manitoba Language
Rights, [1985] 1 S.C.R. 721. It seems to me that these decisions confirm
that the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3
reprinted in R.S.C. 1985, App. II, No. 5, requires all instruments of a
“legislative nature” to be published in English and French, which is not the
issue before me. The Applicants do not quarrel with the proposition that the
Protection Order was constitutionally required to be published in English and
French. However, the Respondents take this constitutional jurisprudence out of
its proper legal context in an attempt to claim that the Protection Order is
unreviewable.
[181] In my
view, other case law relied on by the Respondents to immunize this decision
against review is equally unavailing. Dixon, above, simply confirms that
the courts may review a Cabinet decision for legal error but not for political
motivations. The Supreme Court of Canada’s decision in Reference Re Canada
Assistance Plan (B.C.), [1991] 2 S.C.R. 525, [1991] S.C.J. No. 60 confirms
that a question of statutory interpretation is justiciable regardless of
whether it may have political connotations. The Supreme Court of Canada’s
decision in Canada (Auditor General) v. Canada (Minister of Energy,
Mines and Resources), [1989] 2 S.C.R. 49, [1989] S.C.J. No. 80 confirms
that the ouster of judicial remedies is a question of legislative intent:
Parliament’s intent to make a statutory matter non-justiciable must be expressed
in particular statutory provisions. In holding that the Auditor General Act,
R.S.C., 1985, c. A-17, limited the Auditor General, an officer of Parliament,
to the alternative non-judicial remedy of reporting to Parliament, the Court
emphasized at paragraph 79 that this “should be viewed as limited to the
interpretation of a unique statute as informed by the particular role played by
the Auditor General.”
[182] Further,
at paragraph 17 of their factum, the Respondents submit that the lawfulness of
DFO’s Protection Statement is an issue within the Court’s adjudicative
function. That is, the Respondents concede that the Court has jurisdiction to
adjudicate a claim that a competent minister issued an unlawful protection
statement under subsection 58(5)(b). Yet the Respondents argue that the
Court lacks jurisdiction to adjudicate a claim that a competent minister
unlawfully issued a protection order under subsection 58(5)(a). In my
view, this distinction is nowhere reflected on the face of the provision.
[183] In my
opinion, the analysis of the Court’s jurisdiction to review a statutory
decision must ask whether Parliament intended, in enacting SARA, to shield subsection
58(5) decisions from judicial review. When Parliament intends to shield a
decision from review, it typically uses a privative clause. There is in SARA no
privative clause and no other provision shielding subsection 58(5) decisions
from judicial scrutiny. The Respondents have not pointed to any provisions of
SARA that have this intended effect.
[184] In my
view, then, SARA is clearly a justiciable statute that imposes mandatory duties
on competent ministers. This Court has previously reviewed ministerial actions
under SARA and issued declaratory relief against these same Respondent
Ministers.
Order
cannot be more than it is
[185] The
Respondents further argue that subsection 58(5) of SARA provides that an order
be made “with respect to all of the critical habitat or any portion of the
critical habitat that is not in a place referred to in subsection (2).” They say
that “portion” refers to a geographical portion. As a result, what an order is
required to do is specify the geographic area to which it applies. In this
case, as none of the critical habitat is in a place referred to in subsection
58(2), the Protection Order specifies the entire area of the critical habitat,
and under subsection 58(4) no more could be done.
[186] The Protection
Order does not, however, define the critical habitat; it merely specifies the
portion of the critical habitat to which the subsection 58(1) prohibition
applies. SARA provides for critical habitat to be identified in one of two
places: a recovery strategy or an action plan. This is set out in the section 2
definition of critical habitat which is the habitat “that is identified as the
species’ critical habitat in the recovery strategy or in an action plan for the
species.” An order issued under subsections 58(4) and (5) does not, and cannot,
in my view, change the critical habitat identified in those documents. Nothing
in section 58 permits this.
[187] It is
true that the Protection Order depends for its full meaning and effect upon the
critical habitat identified in the Recovery Strategy. The Respondents concede
that, at the time the Protection Order was made, their view of what was included
in critical habitat as expressed in the Recovery Strategy was wrong and
contrary to SARA. The Respondents have changed their mistaken view of “critical
habitat” as a result of Justice Campbell’s decision in Environmental Defence,
above. Yet the Respondents have not changed the Recovery Strategy to reflect
this change in their understanding of the law. Moreover, they have not
clarified for those who may seek to ascertain the law on protection of critical
habitat for the Resident Killer Whales that the Protection Order should not be
read in the way they intended it to be read when it was issued and as it could still
be read if some of the wording contained in the Recovery Strategy and the RIAS
is relied upon.
[188] In
other words, the fact that the Protection Order is worded so broadly that it
can be taken by the Respondents to cover their new understanding of the aspects
of critical habitat that require protection under SARA does not render the
Protection Order legal. Furthermore, it does not mean that those who seek to
know the law on this crucial issue will not be misled if clarification is not
provided by this Court.
Attempt to review speculated future intentions
[189] The
Respondents say that the Court should not entertain the Protection Order
Application because the Applicants are really challenging what they see as the
future intention of the Respondents with regard to the application of the
prohibition in section 58 of SARA.
[190] The
Respondents say that this is evidenced by the focus of the Applicants’
statutory interpretation argument, which concerns subsection 58(1), even though
the Protection Order is issued under subsections 58(4) and (5).
[191] The Protection
Order neither contains the SARA prohibition against destruction nor identifies
critical habitat. As per subsections 58(4) and (5), the Protection Order simply
specifies the “portion” of the critical habitat, i.e. the physical part, to
which the prohibition against destruction applies. It is subsection 58(1) that
contains the prohibition. Similarly, as per the definition of critical habitat
in SARA, it is the Recovery Strategy that identifies the critical habitat.
[192] Despite
the Applicants’ claim in the relief sought that the Ministers have unlawfully
“excluded the ecosystem features” of the critical habitat “from the scope of
the Protection Order,” the Respondents say that this is simply not possible.
What is prohibited is determined by the interaction of subsection 58(1) with
the critical habitat, which has been identified in the Recovery Strategy and
not by the Protection Order.
[193] The
Respondents say it is the application of the prohibition, triggered by the Protection
Order, with which the Applicants take issue. However, the Respondents say that
the Applicants’ complaints are based entirely on speculation. The Applicants
speculate that the Respondents will apply the Protection Order in a manner
which the Applicants say is unlawful.
[194] It is
the Respondents’ contention that, where jurisdiction exists, a declaration can
issue to affect future rights unless the dispute in issue is merely speculative.
See Solosky v. The Queen, [1980] 1 S.C.R. 821, [1979] S.C.J. No. 130
(QL) (Solosky cited to S.C.R.).
[195] The
Respondents say that the evidence the Applicants rely on creates nothing more
than speculation and that the conduct of DFO officials prior to the issuance of
the Protection Order is irrelevant for two reasons. First, although the
Applicants complain that DFO attempted to remove the identification of critical
habitat from the recovery strategy, the fact is that in the end, it was not
removed or even significantly altered. Second, all of these actions predate the
decision to issue the Protection Order and do not prove the Respondents’ future
intentions in regards to the Protection Order.
[196] The
Respondents say that it is indeed their intention to apply and enforce the
Protection Order in accordance with their new understanding of the scope of
critical habit and that they now concede that the Applicants’ position on the
scope of critical habitat is correct. However, it is difficult for the Court to
understand, first, why the Respondents have not clarified their new position
and their concessions to the Applicants before the hearing and, second, why
they have not taken steps to ensure that the Recovery Strategy and the RIAS are
absolutely clear about the Respondents legal obligations to protect critical
habitat so that all those who need to know what is protected are in no doubt.
In my view, it is disingenuous for the Respondents to argue that a Recovery
Strategy and a RIAS that initially supported the Respondents’ earlier mistaken
view of the law is now adequate and clear enough to support and explain a
totally different view. If this were the case, then the Recovery Strategy and
the RIAS would be inadequate for either interpretation of what is protected
under the Protection Order. What the Ministers appear to mean is that, having
been educated in the correct interpretation of their obligations since the
Protection Order issued, they can now be counted upon to enforce the full
protection required, irrespective of what the Recovery Strategy and the RIAS
may say. This obviously leaves out of account the many other people who do not
know what the Ministers’ new position is and who may well rely upon the
Recovery Strategy and the RIAS to interpret the Protection Order.
[197] The Respondents
say that the Applicants’ arguments in relation to the RIAS do not look at the
document as a whole. The RIAS contains several references to the protection of
the critical habitat as identified in the Recovery Strategy. When the RIAS is
read as a whole, the Respondents say it is clear that the intention, in so far
as that may be relevant, was to apply the Protection Order to the critical
habitat identified in the Recovery Strategy. This is precisely what the statutory
scheme of SARA requires. It is difficult to accept this view, in my opinion,
because the same RIAS was initially intended to support and explain a
completely incorrect view of what aspects of critical habitat were protected by
the Protection Order.
[198] The
Respondents say that the Applicants’ allegation that the Respondents refused to
confirm that the Protection Order prohibited destruction of biological elements
of critical habitat is a mischaracterization. The Respondents say that they simply
explained the statutory scheme of SARA, which the Protection Order applies to
the critical habitat identified in the Recovery Strategy.
[199] In
addition, the Respondents say it is important to keep in mind that, at the time
the Protection Order was issued, and at the time the RIAS was published, the
issue of the nature of critical habitat was before the Court in Environmental
Defence, above. Now that the Court in that case has recognized that
critical habitat consists of location and attributes, it is not reasonable for
the Applicants to assume that the Respondents will ignore that.
[200] As a
result of Environmental Defence, the Respondents say it is now clear
that the prohibition in subsection 58(1) applies to those attributes of
critical habitat that are identified in the Recovery Strategy. As the
Applicants’ complaints are merely speculative, no declarations should issue,
even if jurisdiction to do so existed.
[201] As
the Applicants point out, the Protection Order Application is not based on
speculative evidence of any future events. Rather, it is based on existing
evidence of DFO’s ongoing policy to limit the scope of critical habitat
protection under section 58. It is also worth pointing out that, while they
could have easily done so, the Respondents did not file any affidavit evidence to
indicate that they have abandoned their existing and documented interpretation
of section 58. Whatever Respondents’ counsel may say about the Respondents’
revised interpretation, the uncontested evidentiary record reveals DFO’s clear
and continuing policy to interpret section 58 of SARA so as limit the scope of
protection for critical habitat.
[202] In
arguing that this dispute is “speculative,” the sole authority discussed by the
Respondents is Solosky, above. Yet it seems to me that Solosky
assists the Applicants. In Solosky, the Supreme Court of Canada
confirmed that the fact that declaratory relief would influence future events
was no bar to such relief, provided the dispute was not hypothetical. The Court
held that Mr. Solosky’s challenge to a prison censorship order was not
hypothetical; rather it was a “direct and present challenge” to the order: Solosky,
above, at page 832. As the order continued from the past through the present
and into the future, it raised a non-academic controversy properly resolved by
declaration: “The fact that a declaration today cannot cure past ills, or may
affect future rights, cannot of itself, deprive the remedy of its potential
utility in resolving the dispute over the Director’s continuing order”: Solosky,
above, at page 833. In my view, the Applicants correctly argue that the
Protection Order is entirely analogous. The declarations sought will resolve any
ongoing controversy about the Protection Order.
Applicants cannot obtain the declaration sought
[203] Finally,
in resisting the Protection Order Application the Respondents argue that, absent
a request to review the decision to issue the Protection Order itself, which
would not have been available in any event, this Court lacks the ability to
grant the declarations sought by the Applicants.
[204] The
Respondents’ point is that the Court, as a creation of statute, does not have a
jurisdiction at large to issue declaratory relief but must find a statutory
grant of jurisdiction. The jurisdiction to grant the declaratory relief sought
in the Protection Order Application does not, say the Respondents, exist in the
circumstances of this case.
[205] Declaratory
relief against a federal board, commission or other tribunal lies within the
exclusive jurisdiction of the Court pursuant to subsection 18(1)(a) of
the Federal Courts Act. Such relief may be sought only by judicial
review pursuant to subsection 18(3). However, the powers of the Court to grant
relief are set out in subsection 18.1(3), as follows:
(3) On an application for judicial review,
the Federal Court may
(a) order a federal board, commission or other
tribunal to do any act or thing it has unlawfully failed or refused to do or
has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set
aside or set aside and refer back for determination in accordance with such
directions as it considers to be appropriate, prohibit or restrain, a
decision, order, act or proceeding of a federal board, commission or other
tribunal.
|
(3) Sur présentation d’une demande
de contrôle judiciaire, la Cour fédérale peut :
a)
ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a
illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de
manière déraisonnable;
b)
déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement
conformément aux instructions qu’elle estime appropriées, ou prohiber ou
encore restreindre toute décision, ordonnance, procédure ou tout autre acte
de l’office fédéral.
|
[206] The Respondents
say that the Court has the power to declare unlawful a “decision, order, act or
proceeding” only. It is the Respondents’ position that the Applicants do not
seek to have the Protection Order itself declared unlawful and that the
Applicants also do not identify any other decision, act or proceeding that they
wish to have declared unlawful.
[207] I
think the short answer to this is that the Applicants are asking the
Court to declare the Protection Order unlawful. Paragraph 192 of the
Applicants’ Memorandum of Fact and Law clarifies that the Applicants wish the
Court to declare, inter alia, that it was “an error of law for the
Ministers to limit the application and scope of the Protection Order to legally
protect only geophysical parts of critical habitat.”
[208] What
appears to lie behind the Respondents’ objections to the relief claimed is that
the Protection Order, on its face, does not reveal the mistake of law that was
made at the time it was issued, and now that Environmental Defence,
above, has made them fully aware of their mistake there is no need for the
Court to pronounce upon the illegality of the Protection Order when it was
made.
[209] I see
several problems with this approach. First of all, the Ministers have provided
in this application no clear acknowledgement of the legal mistake that lies
behind the Protection Order nor any suggestions for rectifying the confusion
that may result if matters are left as they are. In the lead up to the hearing
of these applications, the Ministers simply disregarded the merits of the
Applicants’ position and tried to persuade the Court that it had no
jurisdiction to hear the Protection Order Application and should not hear the
Protection Statement Application.
[210] This,
together with the Respondents’ unhelpful responses to the Applicants’ attempts
to clarify with them the legal issues raised in these applications, suggests to
the Court that the Ministers are reluctant to acknowledge the mistake that was
made and to take steps to rectify it. It was only in response to questions put
to legal counsel by the Court at the hearing of the Protection Order
Application that the Ministers acknowledged that they did regard “critical
habitat” as being confined to geophysical components prior to the decision in Environmental
Defence, above, and that the Protection Order had been issued under their
misapprehension of the law.
[211] Even
if the Ministers now intend to apply the Protection Order in accordance with Environmental
Defence, so that all components of critical habitat – including the crucial
factors of reductions in the availability of salmon prey, environmental
contamination and physical and acoustic disturbance – will now be protected in
accordance with section 58 of SARA, this does not resolve the problems caused
by the issuance of the Protection Order.
[212] As
the Respondents themselves point out, the Protection Order, on its face, does
not indicate what is included in critical habitat for the Resident Killer
Whales. Recourse has to be made to the Recovery Strategy and the RIAS. This
causes a problem because the Recovery Strategy contains language that reflects
the Respondents’ mistaken view of the law at the time the Protection Order was
made. Anyone who wants to know which components of critical habitat of the
Resident Killer Whales are protected under SARA has to go to the Recovery
Strategy for guidance. The Respondents have made no suggestion as to how they
intend to clarify the situation for anyone who is implementing, or attempting
to follow, the Recovery Strategy but who was not in Court to hear counsel
concede that all components of critical habitat for the Resident Killer Whales
should now be regarded as being covered by the Protection Order. Given the
history of this matter, and the obvious reluctance by the Respondents to
acknowledge that critical habitat is more than just geophysical space, this
crucial issue cannot be left in doubt. Otherwise, the lack of clarity could
well lead to the thwarting of the purpose of SARA as regards the range of
protection that must be afforded the Resident Killer Whales.
[213] The
Protection Statement that was posted to the SARA public registry on September
10, 2008 distinguished between the legal protection required by SARA for the
geophysical attributes of critical habitat and the management and mitigation of
other threats to the biological and ecosystem features of the habitat of the
Resident Killer Whales. This, together with the lead-up to the Protection
Statement, gave rise to a concern that the Ministers perceived of two levels of
protection for the Resident Killer Whales. One of them was the geophysical
space which they occupied and which the Ministers regarded as having the full
mandatory protection afforded by subsection 58(1) of SARA. The other was the biological
and other ecosystem aspects of the whales’ habitat, which the Ministers considered
should be managed and mitigated and which would not have the full protection of
subsection 58(1) of SARA.
[214] As we
now know, the Protection Statement of September 10, 2008 was replaced by the Protection
Order of February 2009.
[215] However,
both the Protection Statement and the Protection Order can be understood only by
reference to the Recovery Strategy which, after much debate about what should
be included under “critical habitat,” was posted to the public registry on
March 14, 2008.
[216] Notwithstanding
the above-mentioned debate, the Protection Statement makes clear DFO’s determination
to maintain a distinction between geophysical features of critical habitat and
biological and other ecosystem features.
[217] When
the Protection Order was published in the Canada Gazette Part II on
March 4, 2009 it indicated that the prohibition in subsection 58(1) of SARA
applies to the critical habitat of the Resident Killer Whales that are described
in Schedule 1. Schedule 1 is a list of marine coordinates for the geospatial
location of critical habitat.
[218] Confusion
occurred because the Protection Order was published with an accompanying RIAS
that, at least in one section, appears to continue the distinction between the
geophysical areas and the biological features of critical habitat:
[t]he recovery strategy identifies at section 3 the
critical habitats as defined geophysical areas where these populations
concentrate. In addition … DFO recognizes that other ecosystem features such as
the availability of prey for foraging and the quality of the environment are
important to the survival and recovery of the Northern and Southern Resident Killer
Whales.
[219] More
confusion is caused by the following wording from paragraph 3.2 of the Recovery
Strategy which also suggests a distinction between geophysical features and the
other components or features of critical habitat:
While for the purposes of SARA the critical habitat
itself is a defined geophysical area (see above), other ecosystem features such
as the availability of prey for foraging and the quality of the environment
must be managed as threats so as not to compromise the function of the critical
habitat and thus potentially impede survival and recovery.
[220] Clearly,
there is a suggestion here of a distinction between the geophysical area, to
which the protections of SARA are available, and “other ecosystem features,” which
are not protected by SARA and which may have to be “managed.”
[221] This
confusion is confirmed by the Memorandum that went to the Minister of Fisheries
and Oceans dated September 10, 2008:
The potential measures which could be used to
provide legal protection for the Resident Killer Whale populations have been
difficult to determine, given the complexities of the nature of the possible
threats to the animals and to their critical habitat. The Recovery Strategy
identifies the critical habitat in geophysical terms; it is the geophysical
attributes of the critical habitat which must be protected by SARA.
However, the Recovery Strategy also identifies a number of potential threats to
the killer whales which need to be managed to ensure the survival and recovery
of the species; these include availability of prey, acoustic degradation, and a
variety of environmental pollutants [emphasis added].
[222] The
clear implication of these words is that the mandatory protection of SARA is
required only for the geophysical features, while other features of critical
habitat are subject to discretionary management. As confirmed by Justice
Campbell in Environmental Defence, above, this is a fundamental
misreading of what constitutes critical habitat for the purposes of mandatory
protection under SARA. This same misreading of SARA is evident in the analysis
chart that accompanies the Memorandum to the Ministers.
[223] If
the DFO can read the Recovery Statement in this way, then presumably so can
anyone else who consults it in order to determine the full scope of the
Protection Order.
[224] These
are confusions that could have, and should have, been cleared up and addressed
without the need for legal action. This is precisely what the Applicants
attempted to do. On March 6, 2009, the Applicants wrote to advise DFO of their
concerns that the Protection Order might not legally protect the biological
components of critical habitat of the Resident Killer Whales and asking a
series of pertinent questions aimed at clarification. DFO replied through
counsel in a letter dated March 10, 2009.
[225] The
precise question put to DFO by the Applicants was:
Does the Order prohibit the destruction of the
biological elements (or ecosystem features) of critical habitat? Or does the Order
only prohibit destruction of geophysical features of habitat (namely, the
seabed)?
[226] DFO’s
response to this question reads as follows:
Regarding your third question, as already mentioned,
the consequence of issuing the s. 58 order is that destruction of the critical
habitat becomes an offence. Two points arise from this. First, as you are
aware, the critical habitats of these species were identified in the recovery
strategy. That identification was not challenged by your clients, or by anyone
else, and the time for doing so has long since passed. Second, the
responsibility for prosecutions under s. 97 of SARA rests with the
Attorney General of Canada and the prosecutorial discretion of the Public
Prosecution Service of Canada and not the competent ministers. As has occurred
with similar provisions, such as s. 35 of the Fisheries Act, the law
surrounding the scope and application of the prohibition set out in s. 58(1)
will no doubt evolve over time as prosecutions occur.
[227] In my
view, as an answer to a straight question, this is highly evasive. It is
difficult to see what prosecutions have got to do with the matter in hand.
Unless all concerned are clear about what is included in “critical habitat” the
Attorney General of Canada will not know who or what to prosecute. Prosecutions
do not define critical habitat, they enforce the protections to critical
habitat afforded by SARA.
[228] Also,
to point out that critical habitats “were identified in the recovery strategy”
is the equivalent of saying that the doubts created by the ambiguous wording in
the Recovery Strategy and perpetuated by DFO’s own Memorandum to the Ministers
are the problem of the Applicants, and DFO has no interest in clarification.
There may well be a reason for this, of course. In the absence of an
explanation, however, the record suggests to me that DFO was not interested in
resolving the confusion caused by its own documents and former position and had
hopes of carrying forward the distinction between geophysical space (protected
by SARA) and other aspects of habitat (subject to discretionary management and
not protected by SARA). I say this because, in the absence of an explanation,
there is no other plausible reason why the simple question could not have been
answered or why, given the answers and the concessions made in open Court
before me by the Respondents as part of this application, the Applicants should
have been forced to bring this matter before the Court.
[229] The
fact that no meaningful answer was provided to the Applicants’ request for
clarification on the scope of protection provided by the Protection Order made
the Protection Order Application inevitable, and it was commenced by the
Applicants on April 3, 2009.
[230] What
is interesting is that Justice Campbell clarified the full meaning of “critical
habitat” under SARA in Environmental Defence, above. That decision was
issued on September 9, 2009. At the hearing of the Protection Order Application
before me, the Respondents conceded that Justice Campbell had decided the legal
issue and the Respondents now took the position that the Protection Order
covered all aspects of critical habitat that the Applicant felt it should
cover.
[231] This
tells the Court two things of note. First, at the time of the issuance of the
Protection Order in February 2009, and as late as Respondents’ counsel’s reply
letter of March 2009, the Respondents did not regard critical habitat as
anything but geophysical space but were unwilling to admit this fact to the
Applicants, which is why their reply to the Applicants’ question was so
evasive. Second, it reveals that the Respondents changed their mind about the
full scope of “critical habitat” following Justice Campbell’s decision in Environmental
Defence, above, but did not bother to inform the Applicants. Rather they
resisted the Protection Order Application all the way, initially provided no
argument on the merits and advised the Court it had no jurisdiction to hear the
application. Only when the Court put specific questions to counsel at the
hearing did the Respondents concede that they accepted the Applicants’ version
of what was included in critical habitat. The Respondents argued further that
the Protection Order Application was unnecessary because the Protection Order
now covered the biological and ecosystem aspects of critical habitat, a fact
which the Respondents had refused to clarify when asked the question in March
2009 or at any time up to the hearing.
[232] All
of this convinces me that the Protection Order Application was, and remains,
absolutely necessary.
[233] The
Respondents have, in effect, now indicated to the Court that they accept the
Applicants’ position on the meaning of critical habitat and the scope of
protection afforded the Resident Killer Whales under SARA, but they do not want
me to look at the merits of the Protection Order Application because, inter
alia, I lack the jurisdiction.
[234] I am
left wondering, then, what lies behind the Respondents’ resistance. If they did
not want me to hear the Protection Order Application, all they had to do,
following the Environmental Defence decision, was to clarify their new
position with the Applicants and in the public record. I have been offered no
explanation as to why this could not have happened.
[235] In
any event, in light of the Respondents’ evasive conduct and the confusing state
of the public record as outlined above, I believe the Court has to bring to the
issue at hand the clarification that the Respondents have refused to provide.
The Applicants have satisfied the burden for the declaratory relief they seek
in relation to the Protection Order.
Protection Statement application
Should the Court hear it?
[236] Justice
O’Reilly has already decided that the Protection Statement Application is moot.
Nevertheless, he has left it to me to decide whether the Court should exercise
its discretion to hear and decide the application after hearing the merits of
both applications and with the benefit of full submissions and relevant
evidence from both sides.
[237] In
both the Protection Order Application and the Protection Statement Application,
the Respondents initially chose not to provide me with submissions on the
merits. Instead, they focussed on mootness and why I should not hear either
application. However, the Respondents have since conceded that there is some merit
in both applications. With respect to the Protection Statement Application, for
example, the Respondents conceded at the hearing that a protection statement
cannot rely upon provincial laws and can rely only upon protection, other than
SARA, that is “presently in force” at the time the statement is issued. Following
the Court’s direction to the Respondents that they provide the Court with submissions
on the merits of the Protection Statement Application, the Respondents have now
in their Supplemental Written Submissions made further concessions on the
merits of the Applicants’ argument. These concessions are as follows:
i.
Provincial laws cannot be relied on to provide
the protection required by paragraph 58(5)(b);
ii.
A protection statement cannot rely on future
statutory or regulatory instruments that are not in place at the time that the
protection statement is issued;
iii.
The protection that must be provided is
protection against destruction of critical habitat or any of its identified
attributes—in this case, acoustics, water quality and availability of prey.
[238] As
far as the merits are concerned then, this leaves the following outstanding
points of contention between the parties:
i.
Whether a provision of a protection statement
under s. 58(5)(b) of SARA must be a legal provision;
ii.
Whether the legal protection must act as a
substitute for the prohibition in s. 58(1)—that is, it must be a mandatory,
enforceable prohibition against destruction.
[239] There
is no disagreement as to the applicable law when the Court has to consider
exercising its discretion to hear a moot application. The discretion should be
exercised only in exceptional circumstances in accordance with the three
factors established by the Supreme Court of Canada in Borowski, above,
at pages 358-362:
a.
the
presence of an adversarial context;
b.
the
concern for judicial economy;
c.
the
need for the Court to demonstrate a measure of awareness of its proper
law-making function, which means that the Court must be sensitive to its role
as the adjudicative branch in the Canadian political framework.
[240] In
setting out the relevant criteria to consider, the Supreme Court of Canada, in Borowski,
above, was careful to point out (at page 363) that this is not a mechanical
process:
The principles identified above may not all support the same
conclusion. The presence of one or two of the factors may be overborne by the
absence of the third, and vice versa.
Adversarial context
[241] Because
the Ministers, on both applications, initially chose not to address fully the
merits raised by the Applicants, it was not possible to assess precisely the
full extent of the adversarial context. As already discussed, as part of the
Protection Order Application, the Ministers conceded in oral argument that they
did not now take issue with the scope of critical habitat put forward by the
Applicants. This appears to have been prompted by Justice
Campbell’s decision in Environmental Defence, above.
[242] In
relation to the Protection Statement Application, following questions and directions
from the Court, the Respondents have conceded a great deal. However, they have
also now revealed that their interpretation of section 58 of SARA is significantly
at odds with that of the Applicants on fundamental issues that have
far-reaching implications for the protection of the Resident Killer Whales as
well as other species in danger of extinction and extirpation. The promptings
of the Court have revealed that, indeed, there is an ongoing adversarial
context between the parties that requires resolution.
[243] It
emerged during argument that the Applicants are particularly concerned by the
Ministers’ reliance upon broad discretionary powers, such as those found in the
Fisheries Act, as being equivalent to the mandatory protections
contained in section 58 of SARA, and this crucial issue was not fully addressed
by the Respondents.
[244] All
in all, then, I think I have to conclude that there is significant dispute
concerning the Respondents’ duties under section 58 of SARA and that this
dispute will continue unless the law is clarified concerning what non-SARA
protections can legally be relied upon in a protection statement.
[245] I
think it is also obvious that if this dispute is not resolved there could be
serious collateral consequences for other species in need of protection but lacking
champions to bring their cause before the Court. There is an urgency about species
protection that is captured in the objectives and timelines found in SARA and
which suggests that this dispute should be settled quickly before collateral
damage occurs.
Judicial
economy
[246] The
Respondents prefer that the dispute between the parties be settled on a
case-by-case basis and that the Court not make decisions in a factual vacuum which
might hamper future cases.
[247] While
I recognize that I should not be making decisions in a factual vacuum, it seems
to me that the dispute between the parties is not a factual dispute and that
the question of what can be relied upon in a protection statement is clearly a
question of law that is not fact dependent. For example, the Respondents
themselves have now stated clearly that the Ministers cannot rely upon
provincial laws and that they must refer to provisions that are in force at the
time of the issuance of the protection statement.
[248] I
recognize that, in theory at least, there could be some dispute concerning the
effectiveness and scope of a particular provision or measure relied upon and
set out in some “other Act of Parliament,” but I do not think that future cases
would be hampered by a statutory interpretation of what SARA requires in terms
of any particular provision or measure. It seems to me, in fact, that such
statutory interpretation is inevitable before any particular provision or
measure can be assessed.
[249] In Doucet-Boudreau
v. Nova
Scotia
(Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at
paragraphs 20-21, the Supreme Court of Canada directed that the Court should “weigh
the expenditure of scarce judicial resources against the social cost of continued
uncertainty in the law.” In the case before me, significant judicial resources
have already been expended in bringing before the Court a general point of law.
This expenditure has a lot to do with the way the Respondents have continued to
resist points put forward by the Applicants over time but which they now
concede in open Court. If the continued uncertainty regarding the Ministers’
obligations under SARA is allowed to continue this could put vulnerable species
at risk. I see nothing to be gained, and much that could be lost, by postponing
a decision on this issue until such time as another protection statement might
be brought before the Court. As the Applicants point out, continuing legal
uncertainty will have environmental costs and vulnerable species could well be
deprived of the full protection that SARA says they should have. This uncertainty
undermines the overall purpose of SARA. The present dispute has national
implications for all aquatic species at risk and the Respondents’ continued
reliance upon ministerial discretion under statutes such as the Fisheries
Act could affect endangered species generally. As the Applicants point out,
an endangered species is one facing imminent extirpation or extinction. Such
species should not have to await full protection, which may not come for some
time if this issue is not decided now. Those with an interest must know how the
law governing protection statements is intended to apply. Many choices depend
upon this, and those who educate the world about the scope of protection under
SARA need to know now what the legal obligations of the Ministers are.
[250] The
dispute in the Protection Statement Application raises a fundamental question
of statutory interpretation based on the complete evidentiary record that is
before me. The Ministers’ approach to these applications convinces me that the
issue must be decided. Otherwise, DFO will continue to rely upon provisions and
measures that do not legally protect the critical habitat of species at risk as
SARA says it should be protected. The Ministers have already conceded that: (a)
a protection statement must, apart from section 11 conservation agreements,
rely upon federal law; (b) the legal protection relied upon must be in
force at the time the protection statement is issued; and (c) the provisions
referred to and relied upon must protect all components of critical habitat.
However, the Ministers do not agree that: (a) only legal provisions can be
cited in a protection statement; and (b) the provisions cited in a protection
statement must be a substitute for the prohibition contained in subsection
58(1) of SARA and may not lawfully provide a lesser standard of legal
protection.
[251] The
Court must be wary of pronouncing judgments in the absence of a dispute
affecting the rights of the parties. In my view, however, a decision on this
issue will not lead to an unnecessary precedent. It will, rather, lead to a
necessary precedent in an ongoing dispute where the public interest calls out
for a speedy resolution.
[252] All
in all, I think the Applicants have established that, notwithstanding the
mootness of the Protection Statement Application, the Court should nevertheless
hear and decide the fundamental issues of disagreement between the parties
concerning what can lawfully be relied upon in a protection statement and whether
the Protection Statement in this case was illegal for failing to provide the
protections that SARA says the Ministers owe to the Resident Killer Whales.
Merits of Protection Statement application
[253] Generally
speaking, I believe the Applicants are correct in the assertions they make
regarding the legal requirements for the provisions and measures that the
Ministers may rely upon in a protection statement. They are equally correct, in
my view, in their assessment of the illegality of the Protection Statement at
issue in this application.
Protection Statement
[254] A
protection statement cites the provisions of other federal laws that legally
protect critical habitat. These other provisions are intended, in my view, to
substitute for the prohibition against the destruction of critical habitat in subsection
58(1) of SARA.
[255] If
critical habitat is not protected directly under SARA, but by other federal
legislation, compliance with and enforcement of those other federal laws is the
responsibility of the agency charged with administering the legislation in
question. See:
Canada, Environment Canada, Species at Risk Act Policies: Policies
and Guidelines Series – Draft (Ottawa: Minister of the Environment, 2009)
at page 18; online: Depository Services Program <http://dsp-psd.pwgsc.gc.ca/collection
_2009/ec/En4-113-2009-eng.pdf. [Draft Species at Risk Policies].
[256] Two
key points arise from this scheme. First, the protection against the
destruction of critical habitat, provided by subsection 58(1) of SARA, applies only
where a competent minister issues a protection order under subsection 58(4).
[257] Second,
and importantly, the minister has, in my view, no discretion to “choose” to
give critical habitat any lesser legal protection against destruction than the
protection provided through a subsection 58(4) protection order. Put another way, in my view, a competent minister
has no discretion to rely on a provision of another federal law unless that law
provides an equal level of legal protection to critical habitat as would be
engaged through subsections 58(1) and (4). If a provision cited in a protection
statement does not legally protect critical habitat to a degree equalling the
protection under subsection 58(1) and other SARA provisions, then the minister
must issue a protection order.
Disagreement between the parties
[258] The
Court’s direction to the Respondents to provide supplementary submissions on
the merits of the Protection Statement Application has, at last, allowed me to
see precisely where and why the parties disagree. This was a necessary prelude
to my decision on whether or not to hear a moot application and, having chosen
to hear it, to my decision on the merits.
[259] The
point of disagreement is fundamental and it involves an important point of
statutory interpretation that has far-reaching implications for those who
administer and/or who are bound by the scheme set up under SARA. Essentially,
the main issue is as follows.
[260] The
Respondents say that Parliament intended to afford some flexibility for the
manner in which critical habitat protection is provided. Any protection
statement, including the Protection Statement at issue in this application,
does not have to rely upon statutory provisions and instruments which provide
protection “in the same manner as the protection order ….”
[261] The
Respondents say that, under SARA, Parliament has provided the Ministers with
two options to protect critical habitat. The Ministers can publish a protection
statement setting out how critical habitat is “already protected,” or the
Ministers can make a protection order that puts in place a “prohibition against
the destruction of any part of critical habitat.”
[262] The
Respondents concede that both options “must achieve the same goal – the
protection of the location and identified attributes of critical habitat – but
they are not required to do so in the same manner.”
[263] The
Respondents further concede as follows:
To be clear, the
respondent (sic) only takes issue with the manner in which the
applicants say protection must be provided in every case. The respondent (sic)
agrees that the protection which must be provided is protection against
destruction of critical habitat or any of its identified attributes – in this
case, acoustics, water quality, and availability of prey.
[264] As
opposed to the Applicants, the Respondents say that, to achieve the conceded
extent of protection, an instrument or provision relied upon in a protection
statement need not be a legal provision and a federal law “which provides
protection in the form of a mandatory, enforceable prohibition against
destruction.” The Applicants’ approach, say the Respondents, “ignores the
structure of the SARA and makes meaningless the options provided to the
Minister by Parliament in the text of s. 58.”
[265] It is
immediately apparent, then, that the Respondents believe that the protection of
critical habitat under SARA can, at the option of the minister, take one of two
forms. The minister can always, if he chooses, issue a protection order which
will engage the mandatory prohibitions contained in SARA. But she or he can
also choose to do something else: i.e. to issue a protection statement that
does not need to provide protection in the form of a mandatory, enforceable
prohibition against destruction.
[266] At
first blush, it is difficult for the Court to see how a protection statement
that does not rely upon a mandatory, enforceable prohibition against
destruction of critical habitat can, as the Respondents concede it must,
provide protection against destruction of critical habitat or any of its
identified attributes – in this case, acoustics, water quality and availability
of prey. However, as the Respondents
explain it, the answer is to be found in the statutory interpretation of
section 58 of SARA.
[267] The
Respondents say that subsection 58(1) of SARA sets out the prohibition against
the destruction of physical habitat. But the subsection 58(1) prohibition is
“subject to this section.” So this means, the Respondents argue, that the subsection
58(1) prohibition does not apply unless the minister issues a protection order
in which the critical habitat, or a portion thereof, is specified.
[268] The
Respondents agree that, although the Minister can always issue a protection
order, she or he is “required to do so [only] if the critical habitat, or a
portion of it, is not otherwise protected as required by s. 58(5).” Subsection
58(5) of SARA reads as follows:
(5) Within 180 days after the recovery
strategy or action plan that identified the critical habitat is included in
the public registry, the competent minister must, after consultation with
every other competent minister, with respect to all of the critical habitat
or any portion of the critical habitat that is not in a place referred to in
subsection (2),
(a) make the order referred to in subsection (4) if the critical
habitat or any portion of the critical habitat is not legally protected by
provisions in, or measures under, this or any other Act of Parliament,
including agreements under section 11; or
(b) if the competent minister does not make the order, he or she
must include in the public registry a statement setting out how the critical
habitat or portions of it, as the case may be, are legally protected.
|
(5) Dans les cent quatre-vingts jours suivant
la mise dans le registre du programme de rétablissement ou du plan d’action
ayant défini l’habitat essentiel, le ministre compétent est tenu, après
consultation de tout autre ministre compétent, à l’égard de l’habitat
essentiel ou de la partie de celui-ci qui ne se trouve pas dans un lieu visé
au paragraphe (2) :
a) de prendre l’arrêté visé au paragraphe (4),
si l’habitat essentiel ou la partie de celui-ci ne sont pas protégés
légalement par des dispositions de la présente loi ou de toute autre loi
fédérale, ou une mesure prise sous leur régime, notamment les accords conclus
au titre de l’article 11;
b) s’il ne prend pas l’arrêté, de mettre dans
le registre une déclaration énonçant comment l’habitat essentiel ou la partie
de celui-ci sont protégés légalement.
|
[269] Giving these
provisions their ordinary meaning within the full context of SARA, it seems to
me that the minister is obliged to ensure, either through a protection order or
a protection statement that critical habitat is “legally protected.” SARA
itself tells us in section 57 that this is the overall purpose of section 58:
57. The purpose of section 58 is to ensure
that, within 180 days after the recovery strategy or action plan that
identified the critical habitat referred to in subsection 58(1) is included
in the public registry, all of the critical habitat is protected by
(a)
provisions in, or measures under, this or any other Act of Parliament,
including agreements under section 11; or
(b) the
application of subsection 58(1).
|
57. L’article 58 a pour
objet de faire en sorte que, dans les cent quatre-vingts jours suivant la
mise dans le registre du programme de rétablissement ou du plan d’action
ayant défini l’habitat essentiel visé au paragraphe 58(1), tout l’habitat
essentiel soit protégé :
a) soit par
des dispositions de la présente loi ou de toute autre loi fédérale, ou une
mesure prise sous leur régime, notamment les accords conclus au titre de
l’article 11;
b) soit par
l’application du paragraphe 58(1).
|
[270] This brings us
back to subsection 58(5) and the meaning of “legally protected.”
[271] The Respondents
appear to suggest that the “option” available to the minister under subsection
58(5) does not require that the protection relied upon in a protection
statement be the same as, or equivalent to, the protection afforded by a
protection order that brings into play the subsection 58(1) mandatory
prohibition against destruction of critical habitat. The Respondents put it as
follows:
If
the goal of Parliament was that critical habitat protection always take the
form of a “mandatory, enforceable prohibition against destruction,” then
paragraph 58(5)(b) would not have been included in the SARA…. This Court
should not presume that the option of a protection statements (sic) was
meaningless or that the provision of that option does not have a specific role
to play in achieving the legislative purpose.
[272] In my view, this
argument contains several fallacies. First of all, the meaning that the
Respondents ascribe to the word “option” is their meaning. It is not
part of the SARA scheme nor a defined term. The Respondents are saying that the
minister can choose between a protection order and a protection statement
provided there are provisions or measures under SARA or any other Act of
Parliament that protect the critical habitat in question, or some portion
thereof. It seems to me, however, that subsection 58(5) cannot be used to
define “option” in this way. When read in context, subsection 58(5) mandates
the minister to ensure that critical habitat is “legally protected.” The minister
is obliged to make a protection order under subsection 58(5)(a) “if the
critical habitat or any portion of the critical habitat is not legally
protected by provisions in, or measures under, this or any other Act of
Parliament, including agreements under section 11.” Subsection 58(5)(b)
is there to oblige the minister to publish a protection statement, which will
reveal why a protection order under subsection 58(5)(a) is not required
because the legal protection required under subsection 58(5)(a) is
already in place. I do not think that subsection 58(5)(a) should, or can,
be read so as to provide the Minister with an “option” to forgo making a
protection order under subsection 58(5)(a) unless the alternative
sources of protection are of the same kind, degree and scope as the protection
afforded by subsection 58(5)(a), which brings into play the mandatory
legal prohibition against the destruction of critical habitat contained in
subsection 58(1).
[273] I believe the
Respondents are aware of this because they concede that they take issue only with
the “manner in which the applicants say protection must be provided in every
case.” The Respondents agree that “the protection which must be provided is
protection against destruction of critical habitat or any of its identified
attributes – in this case, acoustics, water quality, and availability of prey.”
[274] There are,
however, several important issues that are not made clear in this concession:
a.
Must
the degree, scope and kind of alternative protection relied upon in a
protection statement be the same as that which a protection order would
provide?
b.
Must
the alternative protection relied upon be mandatory?
c.
Does
the “option” claimed by the Respondents allow the minister to rely upon
alternative protection in a protection statement (provided all aspects of
critical habitat are covered) even if the alternate provision or measure
provides something less than a mandatory prohibition against the destruction of
critical habitat, and/or the alternate provision or measure allows the Minister
a discretion in whether or not to enforce a prohibition or in granting licences
and dispensations that would excuse compliance with the mandatory prohibitions the
protection order brings into play?
[275] Reading the
Respondents’ submissions as a whole, it is clear to me that they are taking issue
with more than the “manner” in which the Applicants say protection must be
provided in every case.
[276] They concede
that the alternate provisions and measures under subsection 58(5)(b)
must protect all aspects of critical habitat. However, they deny that the
mandatory prohibitions that a protection order brings into play are required,
and they, in my view, wish to reserve to the minister a discretion to trim and
undercut the mandatory prohibitions of SARA where the minister feels that other
competing interests (economic or otherwise) so require.
[277] In the end, the
Respondents wish to reserve to the minister as much discretion as possible
concerning the extent to which the protection of critical habitat is required
under SARA. DFO has already lost the first round of the debate about ministerial
discretion that arose in the Environmental Defence, above, case and has
been forced to confront the reality that critical habitat is more than just
geospatial and includes all components of critical habitat.
[278] The submissions
made by the Respondents in this case – to the effect that Parliament intended
to grant the minister an “option” that will give the minister, under certain
circumstances, a discretion to modify and/or undercut the mandatory
prohibitions of SARA – are a further attempt, in my view, to reserve as much
discretion to the minister as possible.
[279] This approach is
problematic in two ways. First, it conflicts with a plain and ordinary reading
of SARA in context. Second, it is contrary to Parliament’s expressed intent
that the basic protections of SARA (to which there are exceptions) should be
mandatory and should not rest with the discretion of particular ministers. These
ministers, no doubt, will face enormous pressures from time to time to back
away from or modify those mandatory prohibitions for purposes of political or
economic expedience. As the Parliamentary debates show, however, this is the
very reason why Parliament opted for mandatory prohibition over ministerial
discretion, and I believe that, when read in context, subsection 58(5)(b)
cannot be read in the way suggested by the Respondents.
[280] As the
submissions and the evidence before me show, the Ministers would much prefer to
use the discretionary powers under a statute such as the Fisheries Act
than accept the mandatory prohibitions of SARA. I can understand why. However, I
think Parliament intended otherwise. The Ministers are free to take this matter
up with Parliament if they feel the SARA scheme does not allow them the
discretion they need.
[281] In order to
support their reading of subsection 58(5)(b) the Respondents evoke the
specific reference to section 11 agreements found in that subsection:
[T]he
specific reference to s. 11 agreements is an important piece of the puzzle when
conducting a statutory interpretation exercise. Section 11 agreements are not listed
as an exception to the criteria which precedes the reference to them, but
as an example of something which meets those criteria – the word used is
“including.”
[282] The Respondents
cite the reference to section 11 agreements as “evidence of Parliament’s
intention that the instruments relied on in a protection statement can take a
different form than the protection provided by an order putting in place the
prohibition against destruction.”
[283] The Respondents’
argument on this point is important and should be referred to in full:
18.
Section 11 agreements “must provide for the taking of conservation measures”
including monitoring the status of the species, implementing education
programs, recovery strategies, action plans and management plans, protecting
the species’ habitat and undertaking research projects. They are not a “federal
law” and do not necessarily provide “a mandatory, enforceable prohibition
against destruction’ as the applicants suggest any instruments included in a
protection statement must. Section 11 agreements are designed to be used in a
wide variety of different circumstances involving many different kinds of
parties to such agreements and flexibility in the terms of such agreements is important
and provided for by s. 11 itself.
19.
It is apparent, based on the inclusion of s. 11 agreements in the list of
instruments that provide legal protection, that Parliament intended that the
alternative to a protection order contain some flexibility in the manner of
protection. This is logical as habitats are often complicated ecosystems and
may cover vast areas which are also utilized by humans and other species, some
of which may also be at risk and have different needs. Flexibility in how to address
the complicated issue of the protection of such areas is necessary. A straight
prohibition against the destruction of habitat would not, in all circumstances,
be the most appropriate approach.
[284] The Respondents
appear to be suggesting that, provided a section 11 agreement exists, then the minister
is thereby granted “some flexibility in the manner of protection” that is less
than, or different from a “straight prohibition against the destruction of
habitat.” In my view, subsection 58(5)(a) cannot be read in this way.
Once again, the Respondents are attempting to incorporate into subsection 58(5)
a ministerial discretion that was not intended by Parliament.
[285] In my view, it
cannot be just any section 11 agreement that allows the minister to opt
out of the mandatory obligation imposed by subsection 58(5) to provide legal
protection for critical habitat. The section 11 agreement referred to in
subsection 58(5)(a) would have to be one that legally protects critical
habitat in such a way that the mandatory prohibitions triggered by a protection
order are not required. This can occur only if the protection to critical
habitat provided by a section 11 agreement is the same as, or equivalent to, a
mandatory prohibition under section 58. I do not think subsection 58(5)(a)
can be read as giving the minister the flexibility to dispense with the
prohibition against the destruction of critical habitat because that minister
may decide, in her or his discretion, that “in all circumstances” such a
prohibition would not be appropriate. This would be to import political and
other expediencies into the SARA scheme when Parliament has clearly decided to
relieve individual ministers of the problems associated with expediency by requiring
a mandatory prohibition.
[286] In a further attempt
to support the Respondents’ interpretation of section 58 of SARA, the following
argument is adduced:
21.
However, when assessing the protection provided it is important to keep in mind
that the protection is against destruction. In contrast, the Fisheries
Act, R.S.C. 1985, c. F-14, protects fish habitat against harmful
alteration, disruption or destruction. Despite the long established law under
the Fisheries Act, Parliament chose not to use those terms in the SARA,
but to only protect against destruction. Given the use of the separate terms in
the Fisheries Act, destruction must mean something greater than harmful
alteration or disruption.
[287] It is apparent
throughout the Respondents’ submissions that the Ministers much prefer the
discretions and flexibility of the Fisheries Act to the mandatory
obligations of SARA. Given the demands of ministerial office, this is perfectly
understandable. The problem with the discretionary approach to species
protection in this context, however, is that it was extensively urged and
debated in Parliament, and it was rejected by Parliament. DFO is attempting, in
its interpretation of SARA, to maintain this rejected approach, which may very
well have been a more convenient one, given the many competing interests DFO is
bound to consider. That said, the Fisheries Act is an old statute.
Parliament recognized that times have changed and that a more coercive approach
was necessary for species protection. If the Fisheries Act provided the ministers
with the kind of approach to species protection that Parliament considered
necessary under today’s circumstances, it is difficult to see why SARA was
considered necessary or why Parliament did not make it clear that the older,
discretionary approach that is embodied in the Fisheries Act would
continue under SARA. The debates in Parliament show a clear intention that SARA
would not continue the old approach.
[288] The use of
different terms in the Fisheries Act cannot, in my view, support the
Respondents’ interpretation of section 58 of SARA. The meaning of “destruction”
is not before me in this application and has not been fully argued with proper
evidence and legal authority.
[289] The Respondent here
seeks to explain some of the inappropriate policies, guidelines and instruments
actually referred to in the Protection Statement as being “additional measures
which assist in or support the protection of critical habitat provided by other
instruments.”
[290] This is a
rationalization after the fact. There is no evidence before me to support an
argument that the Ministers were referring to “additional measures” other than
those provisions and measures upon which they relied to avoid having to make a
protection order. The Protection Statement itself does not make this
distinction, and I have no evidence to suggest that this is what DFO intended.
Legal requirements of a Protection Statement
[291] The
Applicants challenge the lawfulness of the Protection Statement because it
relies on “tools,” such as non-statutory instruments, provincial laws,
prospective laws and discretionary laws, to protect critical habitat. The
Applicants submit that a provision cited in a protection statement under subsection
58(5)(b) of SARA must, at a minimum, meet the following five criteria:
1.
it
must be a legal provision;
2.
apart
from section 11 conservation agreements, it must be a federal law;
3.
the
legal protection relied on must be in force at the time the protection
statement is issued;
4.
the
legal protection must act as a substitute for the prohibition in subsection
58(1) – it must be a mandatory, enforceable prohibition against destruction;
5.
the
legal provisions must protect all components of critical habitat.
[292] These
criteria are derived from an examination of the words in subsection 58(5)(b),
read in their entire context and in their grammatical and ordinary sense, in a
way that is harmonious with the scheme of the Act, the object of the Act and
the intention of Parliament. See Bell ExpressVu Limited Partnership v. Rex,
2002 SCC 42, [2002] 2 S.C.R. 559 at paragraph 26.
Plain
language interpretation of subsection 58(5)(b)
[293] At
the material time, subsection 58(5)(b) of SARA described a protection
statement as “a statement setting out how the critical habitat or portions of
it, as the case may be, are legally protected.
[294] The
use of the word “legally” to modify “protected,” taken in conjunction with the
reference to “provisions of” or “measures under” an “Act of Parliament,” in
subsection 58(5)(b) confirm that a provision cited in a protection
statement should be a law or regulation as opposed to a policy or guideline. It
is also clear that a protection statement is supposed to cite provisions of or
under a federal law, as opposed to provisions of provincial or municipal laws.
[295] Sections
57 and 58 communicate urgency. Subsection 58(5)(b) is written in the
present tense. A protection statement must set out how the critical habitat or
portions of it, “are” legally protected – not how critical habitat could be or
will be legally protected. Such protection must be in place within 180 days of
the Recovery Strategy. As now conceded by the Respondents, provisions cited in
a protection statement cannot include plans for future legal protection.
Role
of a Protection Statement within the SARA Scheme
[296] As
the Applicants point out, a protection statement recognizes that protection
under SARA is not required in certain instances where that protection is
already provided under some other federal law. A protection statement avoids
duplication of already existing legal protection.
[297] Within
the SARA scheme, a protection statement acts as a substitute for a protection
order. Hence, the provisions cited in a protection statement act in place of
the prohibition in subsection 58(1) and the permitting provision in section 73
of SARA. Importantly, in my view, the provisions cited in a protection
statement are intended to provide the same protection for critical habitat as
that provided by a protection order.
[298] According
to a draft policy recently released by Environment Canada, the determination of
whether critical habitat is legally protected requires consideration of whether
the provisions cited in the protection statement prevent potentially
destructive activities (such as the activities identified in the relevant recovery
strategy) that are likely to destroy critical habitat. This approach confirms
that, like the prohibition in subsection 58(1), provisions cited in protection
statements must prevent activities that could destroy parts of the critical
habitat. See Draft Species at Risk Policies, above, at page 15.
Intention
of Parliament – Habitat protection must be mandatory and meaningful
[299] The
legislative history of section 58, as cited by the Applicants, illustrates that
Parliamentarians recognized that critical habitat protection under SARA must be
mandatory and not discretionary. Parliament did not intend to allow ministers
to “choose” whether to protect critical habitat.
Protection Statement unlawfully
includes non-statutory instruments
[300] The
Protection Statement in this application cites the following non-statutory instruments:
code of conduct and outreach initiatives; whale-watching guidelines; a statement
of practice with respect to the mitigation of seismic sound in the marine
environment; sensitive benthic areas policy; wild salmon policy; integrated fisheries
management plans; and military sonar protocols. These are policies, not laws
that legally protect critical habitat from destruction.
[301] The
Federal Court of Appeal has confirmed that it is trite law that ministerial
policy does not, and cannot, bind the minister. While non-statutory instruments
may affect behaviour, they do not compel behaviour. Policies may guide, but
they do not bind. See Arsenault, above, at paragraph 38; and Carpenter
Fishing Corp., above, at paragraph 28.
[302] As Canada conceded in Ahousaht Indian Band, above, at paragraph 752, “DFO policies … do not bind
or confine the Minister in his or her exercise of that discretion.” Judicial
consideration of DFO policy has consistently held that it is non-binding.
Courts have also held that whale-watching guidelines and fisheries management
plans are not legally binding. See Carpenter Fishing Corp., above, at
paragraph 28; R. v. Richards, [1991] B.C.J. No. 4101 (BC Prov. Ct.) (QL)
and Arsenault, above, at paragraphs 33, 38, 43.
[303] Courts
have given legal effect to a “guideline” or “policy” in limited instances where
the enabling statute mandates the issuance of the policy, the policy is
mandatory and a prohibition attaches to a failure to follow the policy. This is
not the case with the policies cited in the Protection Statement presently
before the Court. See Oldman River, above, at paragraphs 33, 36-37; and Glowinski,
above, at paragraphs 40, 43.
[304] Additionally,
as explained in the Wallace Affidavit, at the time the Protection Statement was
issued a number of the policies cited therein were not yet finalized or
implemented and some of the policies do not even apply to the Resident Killer
Whales’ critical habitat.
Protection Statement unlawfully cites
possible future provisions
[305] The
Protection Statement cites legislative tools that the DFO might use in the
future to protect critical habitat from destruction.
[306] As
the Respondents now concede, a protection statement cannot cite and rely upon prospective
laws or those that require some subsequent step, such as the issuance of a
regulation, to engage or trigger legal protection. Provisions that rely on the
prospective exercise of legislative authority cannot and do not legally protect
until that authority is exercised.
[307] This
point is confirmed in case law under the American Endangered Species Act of
1973, Pub. L. No. 93-205, 87 Stat. 884. For example, in Greater
Yellowstone Coalition,above, at pages 14-16, the U.S. Federal Court, in
considering whether existing regulatory mechanisms were adequate to protect the
grizzly bear population, held that “[p]romises of future, speculative action
are not existing regulatory mechanisms.”
[308] The
Protection Statement in the present case unlawfully relies on speculative or
future regulatory action to protect critical habitat. For example, the
Protection Statement cites sections 35 and 36 of the Oceans Act, S.C.
1996, c. 31, as legally protecting critical habitat. These provisions allow the
Minister of Fisheries and Oceans to designate and manage marine protected
areas. However, there are no legally designated marine protected areas in
existence, under sections 35 or 36 of the Oceans Act, in the critical
habitat of the Resident Killer Whales. See Oceans Act, sections 31, 35
and 36; Wallace Affidavit at paragraphs 75-77.
[309] In
addition, a marine protected area under the Oceans Act cannot be cited
in a protection statement under subsection 58(5). Critical habitat falling
within a marine protected area already requires a distinct type of protection
order under sections 58(2) and (3).
[310] DFO’s
reliance on the prospective or future ability to regulate toxins that could
destroy critical habitat pursuant to the Canadian Environmental Protection
Act 1999, S.C. 1999, c. 33, or to set conditions on fishing licences pursuant
to section 22 of the Fishery (General) Regulations, SOR/93-53, suffers
from this same legal defect.
[311] As
the Applicants point out, if implemented, some provisions of the Oceans Act
could be lawfully cited in a protection statement. For example, sections 31 and
32 allow DFO to create integrated management plans that govern all activities
affecting marine areas. Such plans can include measures to provide legal
protection for the critical habitat of the Resident Killer Whales.
Protection Statement unlawfully
relies on ministerial discretion
[312] The
role of ministerial discretion appears to be the principal area of contention
between the parties. As I have discussed above, a protection statement is
intended to identify the substitutes for a protection order within the SARA
scheme. In my view, therefore, to appropriately substitute for the mandatory
enforceable legal protection afforded by subsection 58(1), the legal provisions
cited in a protection statement must be mandatory and enforceable.
[313] It is
not only the prohibition in subsection 58(1) that is engaged by a protection
order but also the permitting provisions. As noted above, sections 73 and 74
limit a minister’s ability to issue any permit that will affect critical
habitat. Importantly, under SARA no permits may be issued that could jeopardize
the survival and recovery of the species.
[314] In
contrast, it seems to me that the provisions cited in the Protection Statement
grant a broad, unstructured discretion to permit harmful activities, including
those that would destroy critical habitat. Such discretion does not legally
protect critical habitat from destruction because discretionary protection is
neither mandatory, nor enforceable.
The Fisheries
Act and Regulations
[315] As counsel’s
submissions have now made clear, the competing interpretations of section 58 of
SARA offered by the parties come to a head over the Ministers’ reliance upon
the Fisheries Act to support the legality of the Protection Statement.
[316] The
Respondents say that “section 35 of the Fisheries Act provides
protection which meets the requirements of paragraph 58(5)(b).” The
Respondents, however, also concede as follows:
30. It is true that the statutory scheme of the Fisheries
Act allows for the issuance of habitat alteration, disruption or
destruction (“HADD”) authorisations at the discretion of the Minister of
Fisheries and Oceans. However, the ability to issue authorisations does not
negate the fact that s. 35 provides habitat protection, nor does it mean that
s. 35 can not be relied upon for the purposes of paragraph 58(5)(b).
[317] The
Respondents further argue that the
same logic applies to the protection provided by the
prohibition set out in s. 36 of the Fisheries Act, with the difference
that the authority to breach the prohibition is provided by regulation, not by
authorisation of the Minister of Fisheries and Oceans.
[318] In answer
to the argument that the Ministers’ discretionary powers under the Fisheries
Act could mean that he or she could allow activities that would undermine
the mandatory prohibitions of SARA and compromise or undercut the protection of
critical habitat for the Resident Killer Whales, the Respondents argue as
follows:
35. The applicants argue both that s. 35 of the Fisheries
Act does not provide protection from the destruction of the geophysical
habitat caused by fishing, and that the management of fishing under the Fisheries
Act.
36. At any given time, the way in which fishing can
be conducted and the quantity of fish which can be harvested is managed through
the issuance of licences with gear conditions, and in some cases quota
restrictions, and through opening and closing the fishery for various users. In
the case of salmon fishing in killer whale critical habitat, restrictions on
fishing are provided in the Fisheries Act, The Fishery (General)
Regulations, s. 22, the Pacific Fisheries Regulations, 1993,
SOR/93-54, ss. 51-60 and schedule VI, and the British Columbia Sport Fishing
Regulations 1996, SOR/96-137, ss. 42-50 and schedule VI. The issuance of
licences with conditions, and the opening and closing of fisheries are
“measures under” an Act of Parliament as they are specifically provided for in
the Fisheries Act and its regulations.
37. These measures are not static, and nor should
they be, as conditions in the fisheries change over time and the measures must
be adjusted accordingly. The discretion of the Minister of Fisheries and Oceans
to vary these measures over time is necessary to allow for the appropriate
management of the fisheries and the protection of fish. However, the existence
of that discretion does not negate the protection provided.
38. At any given time, a variety of these measures
are in place to protect fish and hence the availability of prey. The protection
statement would only fail to meet the requirements of paragraph 58(5)(b) if there
was a point in time when the Minister of Fisheries and Oceans exercised his or
her discretion to not put in place measures to limit the harvest such that the
availability of killer whale prey could be destroyed. This is a question of
fact. The respondent says that the measures in place at the time of the
protection statement were sufficient to protect the availability of killer
whale prey from destruction. In any event, the burden is on the applicants to
show otherwise and there is no evidence in this case that the measures in place
at the time of the protection statement were insufficient to prevent the
destruction of the availability of prey.
[319] I
agree with the Applicants that to evaluate whether the Protection Statement
meets the legal standard required under section 58, the legal provisions cited
in the Protection Statement must be compared with the protection offered
through SARA. There is a clear contrast between the legal protection afforded
critical habitat under subsection 58(1) of SARA and the broad discretion under
the Fisheries Act.
[320] The Fisheries
Act and regulations are cited in the Protection Statement purportedly to protect
critical habitat from numerous threats. However, the regulatory scheme under
the Fisheries Act affords far more discretion than SARA. Absent a
specific regulation protecting critical habitat, the Fisheries Act
scheme, including section 35, cannot, in my view, lawfully substitute for an
order under subsection 58(4).
[321] The Fisheries
Act creates a comprehensive scheme for the management of fisheries in Canada. It is highly discretionary legislation that grants broad powers to the Minister of Fisheries
and Oceans to manage the fishery with few statutory limitations. As recognized
by the Court of Appeal in Carpenter Fishing Corp., above, at paragraphs
35 and 37, Parliament has given DFO the “widest possible freedom to manoeuvre”
in regulating the fishery. For example, section 7 grants the Minister “absolute
discretion” over the issuing of fisheries licences. Subsection 35(2) grants the
Minister complete discretion to authorize the destruction of fish habitat.
Section 22 of the Fishery (General) Regulations, above, grants the
Minister complete discretion to attach conditions to a fishing licence. See Ecology
Action Centre Society v. Canada (Attorney General) 2004 FC 1087, 262 F.T.R.
160 (Ecology Action Centre) at paragraph 54 and Ahousaht Indian Band,
above, at paragraph 752.
[322] DFO’s
discretion under the Fisheries Act is not limited by policy or plans.
See Carpenter Fishing Corp., above, at paragraph 28, Ahousaht Indian
Band, above, at paragraph 752; and Arsenault, at paragraphs 38, 43.
[323] The
only provisions of the Fisheries Act specifically referenced in the
Protection Statement are sections 35 and 36. Section 35 of the Fisheries Act
states as follows:
35. (1) No person
shall carry on any work or undertaking that results in the harmful
alteration, disruption or destruction of fish habitat.
(2) No person contravenes subsection (1) by causing the alteration,
disruption or destruction of fish habitat by any means or under any
conditions authorized by the Minister or under regulations made by the
Governor in Council under this Act.
|
35. (1) Il est
interdit d’exploiter des ouvrages ou entreprises entraînant la détérioration,
la destruction ou la perturbation de l’habitat du poisson.
(2) Le paragraphe (1) ne s’applique pas aux personnes qui
détériorent, détruisent ou perturbent l’habitat du poisson avec des moyens ou
dans des circonstances autorisés par le ministre ou conformes aux règlements
pris par le gouverneur en conseil en application de la présente loi.
|
[324] As this Court
confirmed in Ecology Action Centre, above, at paragraph 74, “section 35
does not impose a blanket prohibition on HADD [harmful alteration, disruption and
destruction of fish habitat].” The approval of destruction of fish habitat
under section 35 is at the complete discretion of the Minister.
[325] While, on its
face, the Fisheries Act may appear to provide protection for critical
habitat that is similar to SARA, it would appear that DFO has a much broader
discretion to authorize habitat destruction under the Fisheries Act than
under SARA. Under the Fisheries Act, the Minister’s ability to affect
critical habitat is unlimited. For example, section 36 of the Fisheries Act
prohibits the deposit of a deleterious substance into waters frequented by fish
but allows for the authorization of such deposits through regulation at Cabinet’s
discretion. See Janice Walton, Blakes Canadian Law of Endangered Species (Toronto: Carswell, 2007). By contrast, SARA restricts the Minister’s ability to
affect critical habitat. See Walton, 2007, at pages 2-31 to 2-33 and SARA, sections
73 and 74.
[326] Courts have been
loath to interfere with the Minister’s discretion under section 35 to permit or
prohibit destruction of fish habitat. See Ecology Action Centre, above.
[327] Notably, as this
Court has acknowledged, section 35 does not prevent all destruction of fish
habitat. For example, it does not prevent destruction of fish habitat that
results from fishing activities – an identified threat to Resident Killer Whale
critical habitat. See Ecology Action Centre, above, at paragraphs 75-78,
91.
[328] By contrast,
there is no discretion granted under SARA to permit the destruction of critical
habitat. As the Applicants point out, the SARA permitting provisions limit
activities that could affect critical habitat and preclude authorization of any
activity that could jeopardize survival and recovery of the species. I agree
with the Applicants that the subsection 58(1) prohibition against destruction
of critical habitat applies to all critical habitat and against any activity
that might destroy it.
[329] The Applicants
submit that it is possible that the Fisheries Act could be used to provide
legal protection for critical habitat. For example, Canada could choose to pass
a specific regulation that protects critical habitat or that governs the
exercise of section 35 discretion where critical habitat might be altered or
affected. However, those actions have not been taken. See Fisheries Act,
sections 35(2) and 43.
[330] It seems to me
that the arguments advanced by the Respondents to justify reliance upon the Fisheries
Act in the Protection Statement are not persuasive for a number of reasons.
[331] First of all,
the discretionary powers of the Minister under the Fisheries Act cannot,
in my view, be equated with legislation that may at some future date be
repealed or amended. The discretionary power was present, and relied upon, at
the time the Protection Statement was made. This means that the Minister chose
not to issue a protection order that would provide a mandatory prohibition
against the destruction of critical habitat and to substitute the discretionary
powers under the Fisheries Act. In my view, that is not equivalent
protection. Nothing in the Fisheries Act says that the Minister cannot
exercise his or her discretion under that Act in ways that will modify or
undercut the mandatory prohibitions provided by SARA. Moreover, nothing in SARA
says that the protection that the Fisheries Act gives to critical
habitat cannot be modified or undercut by the Minister exercising his or her
powers under the Fisheries Act. The fact that the Minister may not yet
have done this is, in my view, irrelevant. Under the Protection Statement the
Minister has, in fact, retained the discretionary power to act towards the
critical habitat of the Resident Killer Whales. In my view, the Parliamentary
record, as cited by the Applicants, reveals that it was Parliament’s intent, in
bringing SARA into being, that the Minister would not have the discretion to
deal with critical habitat of endangered species in accordance with the discretion
powers and the scheme of the Fisheries Act.
[332] The Minister has
not and, in my view, could not undertake to exercise her powers under the Fisheries
Act in a way that would preserve the mandatory prohibitions under SARA. The
Respondents’ argument that the Protection Statement remains valid unless and
until something happens in the future is, in my view, fallacious. The whole
point of SARA is to provide protection for the critical habitat of species at
risk in such a way that those protections cannot be set aside or modified
through the exercise of ministerial discretion at some time in the future. The
protection for critical habitat that a protection order brings into being is
not protection that can be modified or compromised by ministerial discretion.
The Minister cannot relinquish or curtail her discretionary powers under the Fisheries
Act. Hence, reliance upon the Fisheries Act means that the critical
habitat of the Resident Killer Whales is protected subject to the Minister
deciding otherwise. This was not the intent of Parliament when it brought SARA
into being. The Parliamentary record is clear.
[333] As the
Applicants point out, the following points are also supportive of this position:
a.
The
Minister’s discretion to allow destruction under section 35 is broad and
unfettered, and not limited by any other statutory provisions. In contrast, a section
58(1) protection order prohibits critical habitat from ever being destroyed;
such critical habitat may only be “affected” and only for those limited
purposes and under those strict pre-conditions set out in subsections 73(2) and
73(3) of SARA;
b.
The
Pacific Fisheries Regulations and the British Columbia Sport Fishing
Regulations do not refer to, or make any provision for, salmon allocation
for the Resident Killer Whales. Instead, these two regulations lay out the
general rules that govern Pacific commercial and recreational fisheries –
including the salmon fishery – and the Minister’s broad discretion to manage
those fisheries as she sees fit. No provision of either regulation requires the
Minister’s discretion to be exercised in a way that protects salmon for whales;
c.
None
of the provisions or the statutory instruments cited by DFO in the Protection
Statement, namely the Fisheries Act and the Fishery (General)
Regulations, refer to, or make any provision for salmon allocation for the
Resident Killer Whales. Instead, these provisions further codify the Minister
of Fisheries and Oceans’ broad discretion to regulate the fishery however she
sees fit. The Fisheries Act and the Fishery (General) Regulations
allow the Minister to take all kinds of actions for almost any reason – but do
not require any particular action to protect Resident Killer Whale critical
habitat, including prey availability;
d.
The
Protection Statement does not cite either the Pacific Fisheries Regulations,
1993, or the British Columbia Sport Fishing Regulations, 1996,
referred to in paragraph 36 of the Respondents’ submissions. Nor does the
Protection Statement refer to any specific licenses, any existing licensing
conditions, or any existing fisheries closures referred to by the Respondents
in paragraph 36 of their Supplemental Submissions;
e.
The
Respondents suggest that it is the Applicants’ burden to show that any
licensing measures in place at the time of the Protection Statement were
insufficient to prevent the destruction of the availability of prey. However,
to be lawful, the Protection Statement would have had to “set out how” a
particular license protected critical habitat. There is no evidence on the
record that any such licenses, license conditions, or fisheries closures
actually exist. As DFO chose not to cite any licenses in its Protection
Statement or file any evidence of their existence, it must be inferred that no
such licenses exist that could satisfy section 58;
f.
The
only evidence on the record concerning the Chinook salmon management at the
time the Protection Statement was made is found in the Affidavit of Dr. Scott
Wallace. Dr. Wallace avers that at the time the Protection Statement was made
Chinook stocks were not being managed to ensure salmon availability for the
Resident Killer Whales;
g.
The
Respondents submit that the Minister should be permitted to rely on her
discretion to “vary fisheries measures over time” to protect salmon
availability for Resident Killer Whales. However, as rightly conceded by the
Respondents, the Protection Statement must be judged based on the law that exists
at the time the statement is made. It is not lawful for a protection statement
to rely on the prospective ability to regulate. Therefore, the Minister
cannot rely on her prospective ability to issue licenses, or limit openings or
any other management action that she has not taken at the time the statement is
made;
h.
As
confirmed by the Federal Court, the Minister is not compelled in any way to
issue licenses that have any conditions or provisions protecting critical
habitat of the Resident Killer Whales. The Minister cannot rely on her absolute
discretion to manage the fishery to discharge her mandatory duty to protect a
component of critical habitat.
Canadian
Environmental Assessment Act (CEAA)
[334] The Applicants also
submit that DFO’s reliance on the Canadian Environmental Assessment Act
to provide legal protection for critical habitat suffers from the same kind of
legal defect that characterizes its reliance on the Fisheries Act. CEAA
is largely a procedural statute that sets out the steps to be taken before
projects may proceed at the discretion of the Minister. CEAA does not prohibit
the approval of environmentally destructive projects. See David Boyd, Unnatural
Law (Vancouver: UBC Press, 2003) at pages 150-154. For reasons already
given in relation to the Fisheries Act, I agree.
Provincial
laws are not laws of Parliament
[335] As now conceded
by the Respondents, section 58 of SARA clearly requires that critical habitat
be protected under a “law of Parliament” or alternatively under a section 11
conservation agreement. Laws of other legislatures and municipal laws cannot be
cited in a protection statement.
[336] The Protection
Statement unlawfully cites the Robson Bight (Michael Bigg) Ecological Reserve
created pursuant to British Columbia’s Ecological Reserve Act, R.S.B.C.
1996, c. 103, which covers a minute portion of the critical habitat area of the
Resident Killer Whales. There are no conservation agreements in place.
Protection Statement fails to set
out how all components of critical habitat are legally protected
[337] I also agree
with the Applicants that the Protection Statement is unlawful because it is
intended to provide legal protection for only certain components of critical
habitat and fails to prevent the most significant threats to critical habitat:
reduction in prey availability, toxic contamination, and physical and acoustic
disturbance.
[338] The Protection
Statement is divided into two sections. The first section purports to set out
how the “geospatial and geophysical attributes” of critical habitat are legally
protected. The threats to habitat included in this first page are from
industrial activity, destructive fishing gear and vessel anchors. These are not
the most significant threats to critical habitat identified by the Recovery
Team, yet these activities threatening geophysical components of critical
habitat are the only activities for which the Protection Statement cites any
legislation, regulations and/or policies which would be used to “provide
protection against such destruction.”
[339] The second part
of the Protection Statement addresses degradation of the acoustic environment,
degradation of marine environmental quality and declining availability of prey.
It lists tools that are “available to manage and mitigate threats to
[ecosystem] functions.” This division reflects DFO’s unlawful policy
distinction between geophysical components, which it has a duty to protect, and
biological components of critical habitat which it has no duty to protect.
Conclusions
[340] I believe that
the Applicants are correct in saying that the Minister of Fisheries and Oceans
erred in law in issuing under subsection 58(5)(b) of SARA a Protection
Statement that relies upon policy and other non-statutory instruments,
prospective laws and ministerial discretion under the Fisheries Act and
the CEAA to provide legal protection for the critical habitat of the Resident
Killer Whales.
JUDGMENT
THIS COURT hereby
makes the following declarations:
- With
respect to the Protection Statement Application:
a.
The
Minister of Fisheries and Oceans erred in law in determining that the critical
habitat of the Resident Killer Whales was already legally protected by existing
laws of Canada;
b.
Section
58 of SARA requires that all elements of critical habitat be legally protected
by the competent ministers;
c.
Outreach
programs, stewardship programs, voluntary codes of conduct or practice,
voluntary protocols and/or voluntary guidelines and policy do not legally
protect critical habitat within the meaning of section 58 of SARA, and it was
unlawful for the Minister to have cited policy documents in the Protection
Statement;
d.
Ministerial
discretion does not legally protect critical habitat within the meaning of
section 58 of SARA, and it was unlawful for the Minister to have cited
discretionary provisions of the Fisheries Act in the Protection
Statement;
e.
Prospective
laws and regulations that are not yet in force do not legally protect critical
habitat within the meaning of section 58 of SARA, and it was unlawful for the
Minister to have cited provisions in the Protection Statement that are not yet
in force;
f.
Provincial
laws do not legally protect critical habitat within the meaning of section 58
of SARA, and it was unlawful for the Minister to have cited provincial laws in
the Protection Statement.
- With respect to the Protection
Order Application:
a.
The
Ministers acted unlawfully in limiting the application and scope of the
Protection Order made under section 58(4) of SARA;
b.
The
Ministers have a duty under section 58 to provide legal protection against
destruction for all components of the Resident Killer Whales’ critical habitat;
c.
The
Ministers acted unlawfully when they limited the application and scope of the
destruction prohibition in section 58(1) of SARA to certain components of
critical habitat but not others;
d.
It
was an error of law for the Ministers to limit the application and scope of the
Protection Order to provide legal protection for geophysical parts of critical
habitat only;
e.
It
was unlawful for the Ministers to exclude the ecosystem features of Resident
Killer Whales’ critical habitat, including availability of prey and acoustic
and environmental factors from the scope of the Protection Order.
- The parties
are at liberty to address the Court on the issue of costs. This should be
done, initially at least, by way of written submissions.
“James Russell”
Judge