Date: 20090909
Docket: T-241-08
Citation: 2009 FC 882
Ottawa, Ontario, September 9,
2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
ALBERTA WILDERNESS ASSOCIATION,
FEDERATION OF ALBERTA NATURALISTS,
GRASSLANDS NATURALISTS, NATURE SASKATCHEWAN
and WESTERN
CANADA
WILDERNESS COMMITTEE
Applicants
and
MINISTER OF ENVIRONMENT
Respondent
SUPPLEMENTARY REASONS FOR
JUDGMENT AND JUDGMENT
[1]
In my Reasons for Judgement and Judgment in this
application dated July 9, 2009, I reserved the right to issue supplementary
judgment as to the appropriate remedy in light of the findings that had been
made. Submissions from the parties have been received and considered.
[2]
It was further indicated in the Reasons for
Judgment that it was my view that it was not appropriate to set aside the
Recovery Strategy in its entirety and have it redetermined by the respondent as
much of it was without objection. It was my preliminary view that Section 2.6 of
the Recovery Strategy entitled “Critical Habitat” ought to be struck, with a
direction to the Respondent that it redraft that section within a fixed time
frame in keeping with the Reasons for Judgment.
[3]
The Applicants submit that the appropriate
remedy should be to set aside Section 2.6 of the Recovery Strategy as well as
the final sentence of the Executive Summary on page v, which states:
“Comprehensive critical habitat for Sage-Grouse has not been identified in this
document but a schedule of studies to identify partial critical habitat has
been included.” They further submit that the redetermination of critical
habitat should be made on the basis of the information at hand at the time of
the redetermination and they have filed a motion seeking leave to file
additional evidence, the affidavit of Mark Boyce, affirmed August 4, 2009,
which it submits will assist the Court in determining the appropriate remedy.
That affidavit attached email messages from an employee of Parks Canada Agency that
outlines more current information on the critical habitat of the Greater
Sage-Grouse than that which was before the Court on this application. They
further make submissions on the timing of the remedy.
[4]
Accordingly, the Applicants submit that the
following is the appropriate remedial order:
1. Section 2.6 and the final sentence in the Executive
Summary of the Recovery Strategy are set aside.
2. The Respondent must redetermine the
identification of critical habitat, in keeping with the Judgment and any
additional reasons for this order, on the basis of the information that exists
at the time of redetermination.
3. The Respondent must post a Proposed Corrected
Recovery Strategy by the end of February 2010. In the alternative and as
explained above, the Respondent must post a Proposed Corrected Recovery
Strategy within one month of the date of the order.
4. The Respondent must post a Finalized
Corrected Recovery Strategy within 90 days after posting the Proposed Corrected
Recovery Strategy.
[5]
The Respondent takes no position on the motion
to admit additional evidence. The Respondent, based on a close reading of the
Reasons for Judgment and the findings therein, submits the following is the
appropriate remedial order:
1. Section 2.6 of the Recovery Strategy, titled
“Critical Habitat” will be referred back to be redrafted to include:
(a) identification of all known active leks in
Alberta and Saskatchewan as
critical habitat (the “Active Leks”);
(b) identification of the source habitat
identified by Dr. Aldridge in the Manyberries area as critical habitat (the
“Manyberries Source Habitat”); and
2. The redrafted Section 2.6 of the Recovery
Strategy, titled “Critical Habitat” will be posted on the public registry
within 30 days of this order.
[6]
In my view, the additional evidence that the
Applicants seek leave to file would not assist the Court. The Recovery
Strategy at issue indicated that additional work would be done to identify
critical habitat and a timetable was set out for that work. Therefore, it is
not surprising that some advancement has been made in that direction.
[7]
If the Court’s Order usurps the role of the
Minister, then it will have become the “academy of science” that is to be
avoided. On the other hand, subsection 41(1)(c) of the Species at Risk Act,
S.C. 2002, c. 29, does provide that critical habitat is to be determined based
on the “best available information”. Given that there are almost constant
developments in all scientific endeavours including those that underlie the
Recovery Strategy, the best available information that exists today may well be
different and hopefully improved from that which existed when the application
was filed.
[8]
Nonetheless, the Court’s task in fashioning a
remedy is to provide an order that will remedy that small part of the Recovery
Strategy that was found to be deficient. If the Respondent chooses to redraft
the Critical Habitat section only to correct those areas of deficiency found by
the Court to be unreasonable in the Judgment dated July 9, 2009, without
updating the document to reflect more current information, it will have
resolved the deficiencies as found by the Court and, in my view, it would be
inappropriate for this Court to order the Respondent in this proceeding to do
more.
[9]
For these reasons, the Judgment dated July 9,
2009, is supplemented by adding the following Supplementary Judgment.
SUPPLEMENTARY
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that in addition to the terms of Judgment in this application
that issued July 9, 2009:
1. Section 2.6 of the Recovery Strategy, titled
“Critical Habitat” will be referred back to be redrafted to include:
(a) identification of all known active leks in Alberta and Saskatchewan as critical habitat (the “Active Leks”);
(b) identification of the source habitat
identified by Dr. Aldridge in the Manyberries area as critical habitat (the
“Manyberries Source Habitat”); and
2. The redrafted Section 2.6 of the Recovery
Strategy, titled “Critical Habitat” will be posted on the public registry
within 30 days of this Order.
“Russel W. Zinn”
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