Date: 20070917
Docket: T-942-06
Citation: 2007 FC 921
Ottawa, Ontario, September 17, 2007
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
HARRY IAN ROUNTHWAITE
Applicant
and
THE MINISTER OF THE ENVIRONMENT
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
This is a motion
brought by the Respondent, the Minister of the Environment (the Minister), to
dismiss the application for mandamus made by the Applicant, Harry Ian
Rounthwaite, on the basis that the matter is now moot.
[2]
In the underlying
judicial review, the Applicant seeks an order of mandamus to compel the
Minister to form his opinion pursuant to section 29 of the Species at Risk
Act, L.C. 2002, c. 29 (SARA) as to whether there is an imminent threat
to the survival of the Sakinaw Lake sockeye salmon (Sakinaw Lake sockey).
[3]
The Minister has
formed the opinion that there is an imminent threat to the survival of the Sakinaw Lake sockeye, and made the
recommendation to the Governor in Council pursuant to section 29(1) of the SARA
that the List of Wildlife Species at Risk (the List) be amended to list the Sakinaw Lake sockeye salmon as an endangered species. On May 17,
2007, the Governor in Council published an Order in Council setting out its
decision declining to amend Part 2 of Schedule 1 to the SARA and list the Sakinaw Lake sockeye as an endangered
species.
2. Facts
[4]
The Oncorhynchus
nerka, Sakinaw Lake sockeye is a wildlife species
as defined in the SARA, which spawns exclusively in Sakinaw Lake, located in the British Columbia sunshine coast north of Pender Harbour, draining into the waters of Georgia Strait.
[5]
On October 25,
2002, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC)
conducted an emergency assessment of the status of the Sakinaw Lake sockeye and
recommended to the then Minister that the Sakinaw Lake sockeye should be listed
as endangered under Schedule 1 of the SARA.
[6]
By letter dated
April 23, 2004, the Minister advised the Chair of the COSEWIC that he had
decided that an emergency listing of the Sakinaw Lake sockeye was
not warranted at that time and that the addition of the salmon to the List
would be considered through the normal listing process.
[7]
On October 23,
2004, the Minister announced his decision that he would not recommend to the
Governor in Council that the Sakinaw Lake
sockeye be added to SARA, Schedule 1.
[8]
The actual return
of adult Sakinaw Lake sockeye to Sakinaw Lake in 2004 was only 99 fish. The return in 2005 declined
to only 28 adult fish. In 2006, only one female adult returned to spawn.
[9]
On February 10,
2006, the Applicant, Harry Ian Rounthwaite, applied to the COSEWIC under
subsection 28(1) of the SARA for an emergency assessment of the population
status of the Sakinaw Lake sockeye.
[10]
On February 20,
2006, the Chair of the COSEWIC advised the Minister that he had established an
Emergency Assessment Subcommittee for the Sakinaw Lake sockeye.
[11]
By a letter dated
April 20, 2006, the Chair of the COSEWIC advised the Minister that the Sakinaw Lake sockeye faces an imminent threat to its survival and
recommended that the Sakinaw Lake sockeye be added to SARA,
Schedule 1 on an emergency basis.
[12]
The second
COSEWIC emergency assessment of the Sakinaw Lake sockeye was
received on April 20, 2006, by the Acting Head of Policy Development in the
Policy Branch, Department of Fisheries and Oceans (DFO), Pacific Region, Mary
Hobbs.
[13]
On April 24, 2006
and May 29, 2006, the Applicant wrote to the Minister asking the Minister
whether he had formed the opinion that the Sakinaw Lake sockeye faces an imminent threat to its survival.
[14]
By e-mail, dated
May 23, 2006, the Minister acknowledged receipt of an April 23, 2006 e-mail
from the Chair of the COSEWIC advising him of the emergency assessment and
recommendation for the Sakinaw
Lake sockeye.
[15]
Ms Hobbs
appointed a cross-sectoral team from the DFO which met on July 12, 2006. At
that time Ms. Hobbs instructed the team to gather information on the 2006 smolt
counts, the exploitation rates for 2006 as well as a review of the 2006
Integrated Fisheries Management Plan. The cross-sectoral team met again on
September 18, 2006 and, as a result of these two meetings, Ms. Hobbs submitted
a Decision Paper to the Regional Management Committee (RMC) of the DFO dated
September 26, 2006.
[16]
The Decision
Paper concludes that there is no basis to refute COSEWIC’s conclusion that Sakinaw Lake sockeye is endangered, and that
listing on an emergency basis does not allow an assessment of the social and
economic impacts associated with an emergency listing decision, nor does it permit
consultation with those potentially affected. The DFO has also concluded that
the Minister must consult with Ministers of the Government of British Columbia
pursuant to the Canada-British Columbia Agreement on Species at Risk and states
that such consultations have not yet occurred.
[17]
In June 2006, the
Applicant brought an Application for mandamus essentially to compel the
Minister to form an opinion pursuant to section 29 of the SARA as to whether
there is an imminent threat to the Sakinaw Lake sockeye.
[18]
The Respondent’s
evidence establishes that the Minister made a recommendation to the Governor in
Council that there is an imminent threat to the survival of the Sakinaw Lake sockeye. However, on May 30,
2007, the Canada Gazette, Part 1 published SOR/207-102 dated May 17, 2007
reported the following decision of the Governor in Council:
Her
Excellency the Governor General in Council, having considered the
recommendation of the Minister of the Environment, made pursuant to subsection
29(1) of the Species at Risk Act, and social, economic and other
factors, hereby declines to amend Part 2 of Schedule 1 to the Species at
Risk Act to list the sockeye salmon, Sakinaw Lake population, as an
endangered species.
3. Issue
[19]
The issue in this
motion is whether the judicial review ought to be dismissed as the matter is
now moot.
4. The Law
[20]
The leading case on mootness is Borowski
v. Canada (Attorney General) [1989] 1 S.C.R. 342. In that case,
the Supreme Court provided guidance on the application of the doctrine of
mootness, particularly in respect to when courts should exercise discretion in
departing from the usual practice of not deciding hypothetical or abstract
questions. As
a general principle, the Supreme Court held that a court should not render a judgment
in circumstances where its decision will have no effect in resolving a
controversy that affects (or may affect) the rights of the parties. Further, at
paragraph 15 of its reasons, the Supreme Court held that if events subsequent
to the initiation of proceedings occur and as a result, the controversy between
the parties ceases, the case is said to be moot.
[21]
In
determining whether an issue is moot, at paragraph 16 of its reasons, the Supreme
Court sets out the following two step analysis. First, determination of whether
there remains a live controversy. If the controversy has disappeared, then the
issue will be considered to be moot. Second, if the issue is moot, the Court
must then decide whether it should exercise its discretion and hear the case in
any event. The following three factors are to be considered in the exercise of
discretion: (1) the requirement of an adversarial context; (2) the concern for
judicial economy; and (3) the need for the Court to demonstrate a measure of
awareness of its proper law-making function.
5. Analysis
[22]
In his notice of
application the Applicant seeks the following relief:
1. An order or orders:
(a)
declaring that the Minister’s delay in responding to the Applicant’s demand
that the Minister make a recommendation pursuant to s. 29(1) for the Sakinaw
Lake sockeye salmon constitutes a refusal to make such a recommendation;
(b)
declaring that the refusal by the Minister to recommend that the Governor in
Council make a recommendation, on an emergency basis, that the List of Wildlife
Species at Risk be amended to list the Sakinaw Lake sockeye salmon as
endangered pursuant to s. 29(1) is unreasonable or patently unreasonable;
(c)
declaring that the Minister’s recommendation to the Governor in Council
pursuant to s. 29(1), or the reasons for failing to make a recommendation be
made public;
(d)
declaring that the only considerations that are relevant to the Minister’s
opinion pursuant to s. 29(2) are the Emergency Assessment of the Committee on
the Status of Endangered Wildlife in Canada (COSEWIC), the opinion of the
Minister of Fisheries and Oceans and the scientific and biological information
directly related to whether the Sakinaw Lake sockeye salmon faces an imminent
threat to its survival in the wild in Canada, and that the following
considerations are irrelevant to the Minister’s opinion pursuant to s. 29(1):
(i)
the socio-economic impacts of amending the List of Wildlife Species at Risk to
list the Sakinaw Lake sockeye salmon as endangered; or
(ii)
the impacts on the west coast sockeye salmon fishery or on intergovernmental
relations of a listing of the Sakinaw Lake sockeye salmon as endangered.
2. An
order in the nature of mandamus compelling the Minister to comply with
her duties under s. 29 of the Species at Risk Act to recommend to the
Governor in Council that the List of Wildlife Species at Risk be amended on an
emergency basis to list the Sakinaw Lake sockeye salmon as endangered.
3. Such
further and other relief as to this Honourable Court may deem just.
[23]
As stated above, the Minister has made a recommendation
to the Governor in Council. In his memorandum of fact and law, at paragraph 13,
the Applicant states:
The Applicant concedes that the
portion of the application for judicial review which seeks an order in the
nature of mandamus is moot. The effect of the Minister’s recommendation under s. 29(1)
is that it is no longer necessary for the Court to consider the question
whether it should exercise its discretion and grant a mandamus order. (My emphasis.)
The Applicant submits, however, that
there remains a live controversy between the parties regarding the correct
interpretation of sections 25 and 27 of SARA and as a consequence, the
application for judicial review is not moot. The Applicant argues that the
Minister failed to include a statement of response in the public registry
within 90 days as required by subsection 25(3) of SARA. The Applicant maintains
that subsection 25(3) of SARA is an independent statutory requirement and is
not derivative of the Minister forming an opinion under subsection 29(1).
Additionally, the Applicant claims that the Minister and his department have
been wilfully ignoring the will of Parliament by not respecting the timeline
indicated at subsection 27(1.2) of SARA. This provision requires the Minister,
with the Governor in Council, to include a statement in the public registry
setting out the reasons for the decision taken to decline to add the Sakinaw Lake
sockeye to the List as an endangered species.
[24]
The Respondent argues that the application for mandamus should be
dismissed since the Minister has formed an opinion and has made the required
statutory recommendation to the Governor in Council. The Respondent contends
that there is no longer any live controversy and as a
consequence, the issue raised in the underlying application is moot.
[25]
In my view, there
is no longer a live controversy or concrete dispute as framed in the notice of
application. The substratum of Mr. Rounthwaite’s application was to
compel the Minister of the Environment to conform to his statutory obligation
and form an opinion as to whether the Sakinaw Lake sockeye
faces imminent risk to its survival. This has been done. While the Minister’s
obligation set out in subsection 25(3) of SARA may be separate and distinct
from her obligation to form an opinion pursuant to subsection 29(1), the matter
was not raised in the notice of application. The declaratory relief sought in
the notice of application is premised on the Minister’s failure to make a
recommendation. In my view, the substratum of the Applicant’s
application has disappeared and the issue is now moot.
[26]
Nor do I believe
this is a case where the Court should exercise its discretion and hear the case in any
event. The notice of application, as framed, fails to provide the requisite
adversarial context to ensure that the subsidiary issues raised in argument are
fully canvassed. The substratum
of the underlying
application does not provide the proper context for the preparation of a
complete evidentiary record to allow these issues to be fully developed in
argument. In such circumstances, in the absence of a proper adversarial
context, considering the Court’s adjudicative function and the concern for judicial
economy, I decline to exercise my discretion and hear the application.
6. Conclusion
[27]
For
the above reasons the motion will be granted and the underlying application for
judicial review will be dismissed by reason of mootness.
ORDER
THIS COURT ORDERS
that:
1. The motion is
granted.
2. The application for
judicial review is dismissed by reason of mootness.
3. The Respondent shall
have her costs.
“Edmond P.
Blanchard”
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