Docket:
T-1777-12
Citation:
2014 FC 148
Ottawa, Ontario, February 14, 2014
PRESENT: The Honourable
Madam Justice Mactavish
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BETWEEN:
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WESTERN CANADA WILDERNESS COMMITTEE,
DAVID SUZUKI FOUNDATION, GREENPEACE CANADA, SIERRA CLUB OF BRITISH COLUMBIA
FOUNDATION, AND
WILDSIGHT
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Applicants
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And
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MINISTER OF FISHERIES AND OCEANS AND
MINISTER OF THE ENVIRONMENT
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Respondents
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REASONS FOR ORDER AND ORDER
[1]
Where a species is
identified as being endangered, threatened or extirpated, the Species at Risk
Act, S.C. 2002, c. 29 (“SARA” or “the Act”) requires that a proposed
recovery strategy for the species in question be published by the competent
minister within a fixed period of time. The statute further requires the
Minister to publish a final recovery strategy shortly thereafter.
[2]
The Minister of
Fisheries and Oceans did not comply with the statutory timelines for the
preparation and publication of recovery strategies for the White Sturgeon, Nechako River population (the “Nechako White Sturgeon”) and the Humpback Whale, North
Pacific population (the “Pacific Humpback Whale”). Nor did the Minister of the
Environment comply with the statutory timelines for the preparation and publication
of recovery strategies for the Marbled Murrelet and the Woodland Caribou, Southern
Mountain population (the Southern Mountain Caribou”). These are the four
species at issue in these consolidated applications for judicial review
(collectively “the four species”).
[3]
The Ministers’
failure to act in a timely fashion in relation to the four species led the
applicants to commence these applications for judicial review. The applicants
seek declaratory relief regarding the Ministers’ conduct and orders of mandamus
to compel the Ministers to perform their statutory duties in relation to the
four species.
[4]
The commencement of
this litigation prompted the publication of proposed recovery strategies for
three of the four species shortly before the start of the hearing, as well as
the publication of a final recovery strategy for one of these species. A
proposed recovery strategy was published for the fourth species shortly after
the hearing was concluded. In each case, however, the proposed recovery
strategy was published several years after the expiry of the relevant
statutory timeline.
[5]
The Ministers admit
that they have failed to comply with their statutory obligations under SARA.
Where they disagree with the applicants is in relation to the legal
consequences that should follow from this breach.
[6]
For the reasons that
follow, I have concluded that the applications for judicial review should be
granted, and that in light of the egregious delays in each case, a declaration
should issue in relation to the Ministers’ conduct.
[7]
Given that proposed
recovery strategies have now been published for all four of the species at
issue, the applications for mandamus will be dismissed insofar as they
relate to proposed recovery strategies. In accordance with the agreement of the
parties, I will retain jurisdiction over this matter so as to allow the parties
to make further submissions as to whether orders of mandamus should
issue in relation to the publication of final recovery strategies for the three
species for which such strategies have not yet been published.
The Parties
[8]
The applicants, the Western
Canada Wilderness Committee, the David Suzuki Foundation, Greenpeace Canada, the Sierra Club of British Columbia Foundation and Wildsight are non-governmental
organizations working to protect Canada’s environment and preserve Canada’s species at risk. They identify themselves as public interest litigants who have an
interest in the protection and recovery of species at risk in Canada.
[9]
No issue has been
taken by the Ministers with respect to the applicants’ standing to bring these
applications.
[10]
The respondent
Minister of Fisheries and Oceans and Minister of the Environment are “competent
ministers” under section 2 of SARA responsible for the four species in
issue in these applications. The Minister of Fisheries and Oceans is the
competent minister for the Nechako White Sturgeon and the Pacific Humpback
Whale, whereas the Minister of the Environment is the competent minister for
the Marbled Murrelet and the Southern Mountain Caribou.
The Species at Risk Act
[11]
The relevant
provisions of SARA came into force on June 5, 2003. Enactment of SARA
had the effect of incorporating the objectives of the Convention on
Biological Diversity (negotiated under the guidance of the United Nations
and ratified by Canada in December 1992) into Canadian legislation.
[12]
The purposes of SARA
are identified in section 6 of the Act as being “...to prevent wildlife species
from becoming extirpated or becoming extinct, to provide for the recovery of
wildlife species that are extirpated, endangered or threatened as a result of
human activity and to manage species of special concern to prevent them from
becoming endangered or threatened”. The full text of the relevant provisions of
SARA are attached as an appendix to these reasons.
[13]
Section 2 of the Act
defines “species at risk” as meaning “an extirpated, endangered or threatened
species or a species of special concern”. An “extirpated species” is one “that
no longer exists in the wild in Canada, but exists elsewhere in the wild”. An
“endangered species” is “a wildlife species that is facing imminent extirpation
or extinction”, whereas a “threatened species” is “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”. Finally, “a species of special
concern” is “a wildlife species that may become a threatened or an endangered
species because of a combination of biological characteristics and identified
threats”.
[14]
SARA creates a process for the classification
of species by level of risk. Section 14 of the Act establishes the Committee on
the Status of Endangered Wildlife in Canada (COSEWIC), which is an independent
committee of experts. Pursuant to subsection 15(1) of the Act, COSEWIC is
mandated to assess the status of each wildlife species that it considers to be
at risk, identify existing and potential threats to the species, and classify
the species as being extinct, extirpated, endangered, threatened or of special
concern.
[15]
If a species is
classified as being “at risk”, then the Minister of the Environment must make a
recommendation to the Governor in Council to either list the species in
Schedule 1 to the Act with the classification assigned by COSEWIC, not list the
species or send the matter back to COSEWIC for reconsideration.
[16]
Once a species is
listed in Schedule 1 to the Act, section 37(1) provides that the competent
minister must prepare a recovery strategy for the species in question and statutory
timelines begin to run.
[17]
Section 42(1) of the
Act provides that in the case of an endangered species, the competent minister must include a proposed recovery
strategy for the species in the public registry established under section 120
of the Act within one year of the species being listed in Schedule 1. A proposed recovery strategy must be posted in the public
registry within two years after the species is listed in the case of threatened
or extirpated species.
[18]
Where species are listed
in Schedule 1 on the day that the relevant provisions of the Act came into
effect, section 42(2) of SARA requires that the competent minister must
include a proposed recovery strategy in the public registry within three years
of that date, in the case of endangered species, and within four years, in the
case of threatened or extirpated species.
[19]
Where a species is
added to Schedule 1 by the Governor in Council as the result
of an assessment under section 130 of the Act, section 132 of SARA
requires that a recovery strategy for the species must be prepared within three
years in the case of endangered species, and within four years in the case of
threatened species.
[20]
Regardless of the
process followed in listing the species, once a proposed recovery strategy has
been posted for a species at risk, section 43 of the Act provides a 60 day
period for public comment. The competent minister then has a further 30 days in
which to review the comments received, make the appropriate changes and
finalize the recovery strategy by posting it in the public registry.
[21]
Recovery strategies
must address the threats to the survival of the species, including any loss of critical
habitat. The Minister must then prepare an action plan based upon the recovery
strategy. There is no statutory timeline for the preparation of an action plan.
[22]
As noted above, the
timelines for the production of proposed and final recovery strategies depend
on the level of risk assessed, and which of several processes was followed in
relation to the listing of the species in question. I do not understand there
to be any material disagreement between the parties with respect to the
applicable timelines identified in the following paragraphs.
Nechako White Sturgeon
[23]
The Nechako White
Sturgeon was listed as an endangered species on Schedule 1 of SARA on
August 15, 2006, as a result of an assessment under section 130 of the Act. The
respondents admit that in accordance with section 132 of the Act, the Minister
of Fisheries and Oceans was required to post a proposed recovery strategy for
the Nechako White Sturgeon in the public registry created under the Act within
three years - that is by August 15, 2009. The Act further required that a final
recovery strategy be posted in the public registry by no later than November 16,
2009.
[24]
At the time that the
applicants commenced their application for mandamus with respect to the
proposed recovery strategy for the Nechako White Sturgeon on September 25,
2012, the proposed recovery strategy had not yet been posted and was more than
three years overdue.
[25]
The respondents also
admit that as a result of the commencement of this litigation, a decision was
made by the Minister of Fisheries and Oceans to prioritize this case. This led
to a proposed recovery strategy for the Nechako White Sturgeon being posted in
the public registry in mid-December, 2013 - less than a month before the start
of this hearing, and more than four years after the statutory time limit for
the posting of such a document had passed.
Pacific Humpback Whale
[26]
The Pacific Humpback
Whale was listed as a threatened species in Schedule 1 of the SARA on
January 12, 2005, as the result of an assessment under section 130 of the Act.
The Minister of Fisheries and Oceans was therefore required to post a proposed
recovery strategy for the Pacific Humpback Whale in the public registry by
January 12, 2009, with a final recovery strategy due by April 14, 2009.
[27]
At the time that the
applicants commenced their application for mandamus with respect to the
proposed recovery strategy for the Pacific Humpback Whale, the proposed
recovery strategy had not yet been posted and was nearly four years late.
[28]
As was the case with
the Nechako White Sturgeon, the commencement of this litigation caused the
Minister of Fisheries and Oceans to move on this case. A proposed recovery
strategy for the Pacific Humpback Whale was posted in the public registry on
July 17, 2013, and a final recovery strategy was released on October 21, 2013 -
more than four years after it was due.
[29]
Because a final
recovery strategy has now been posted for the Pacific Humpback Whale, the
applicants are no longer seeking an order of mandamus with respect to
this species, although they maintain their claim for declaratory relief.
Marbled Murrelet
[30]
The Marbled Murrelet
is a small fish-eating sea bird that forages in British Columbia coastal waters
and adjacent old-growth forests. The Marbled Murrelet was listed as a
threatened species on June 5, 2003. As a consequence, a proposed recovery
strategy was to have been posted by no later than June 5, 2007, with the final
strategy due by September 6, 2007.
[31]
At the time that the
applicants commenced their application for mandamus with respect to the
proposed recovery strategy for the Marbled Murrelet in September of 2012, no
proposed recovery strategy had yet been posted in the public registry and it
was more than five years late.
[32]
The commencement of
this litigation also prompted the Minister of the Environment to move this case
forward, and a proposed recovery strategy for the Marbled Murrelet was posted
in the public registry on January 7, 2014 - the day before the start of the
hearing, and some six and half years after the statutory time limit for the
posting of such a document had passed.
Southern Mountain Caribou
[33]
The Southern Mountain
Caribou was listed as a threatened species on June 5, 2003. A proposed recovery
strategy should therefore have been posted by no later than June 5, 2007, with
the final recovery strategy required to have been posted by September 6, 2007.
No proposed recovery strategy for the Southern Mountain Caribou had been posted
at the time that this case was heard. However, counsel for respondents advised
that the Minister of the Environment had committed to posting a proposed
recovery strategy by January 17, 2014, and I was subsequently advised by that
this in fact occurred on that date - some six and a half years after it was due.
The Applications for Judicial Review
[34]
The applicants
commenced their four applications for judicial review on September 25, 2012.
They chose a terrestrial mammal and a migratory bird for whom the Minister of
the Environment was responsible, together with an aquatic mammal and a fish
under the jurisdiction of the Minister of Fisheries and Oceans as the subjects
of their applications.
[35]
The applicants
characterize these four applications as being representative of the endemic
systemic problems that have been encountered with both the Minister of
Fisheries and Oceans and the Minister of the Environment in relation to the
implementation of the recovery strategy provisions of SARA.
[36]
By way of relief, the
applicants seek a declaration declaring unlawful the Ministers’ ongoing failure
or refusal to include proposed recovery strategies for the four species in the public
registry as he or she was required to do pursuant to the provisions of SARA.
[37]
The applications also
seek orders of mandamus compelling the competent minister to include proposed
recovery strategies for each of the four species in the public registry within
30 days of the date of the Court’s judgment and to include final recovery
strategies for the four species in the public registry within 90 days from the
date on which the relevant proposed recovery strategy is included in the public
registry.
[38]
Finally, the
applicants seek their costs, if successful, or an order that the applicants not
be required to pay the Ministers’ costs, in the event the applications are
dismissed.
[39]
By Order of
Prothonotary Lafrenière, the four applications were consolidated and ordered to
be heard together on the basis of a common evidentiary record.
The Minsters’ Concessions
[40]
The Ministers have
made a number of admissions and concessions that have greatly assisted in
limiting and focusing the issues in this case.
[41]
In particular, the
Ministers acknowledge that:
1. SARA does not confer any
discretion on the Ministers to extend the time for the performance of their statutory
duties with respect to the preparation and posting of proposed and final
recovery strategies for species at risk;
2. The Ministers are legally required to
comply with the statutory timelines and they have not done so in these cases;
3. The breaches of the statutory timelines
at issue in these proceedings were not minor: there were “substantial delays”
in the preparation of the proposed recovery strategies for each of the four
species, and the posting of the documents was “seriously overdue”; and
4. While the Ministers have provided
explanations for the delays in posting the proposed recovery strategies for
each of the four species, these explanations do not change the fact that the
Ministers have failed to comply with the provisions of SARA.
[42]
Counsel for the
respondents states that the explanations provided for the delays in posting
draft recovery strategies for the four species are not being offered as a
justification for the Ministers’ failure to comply with the provisions of the
Act. Rather the reasons for the delays are something that the Court should take
into account in deciding whether or not mandamus should issue, and in
determining the terms of any such order.
[43]
The respondents have
provided extensive affidavit evidence from four affiants: two senior managers
within the Department of Fisheries and Oceans and two from Environment Canada.
[44]
Before reviewing the
explanations provided by the Ministers, however, it is first necessary to
address the motions brought by the parties with respect to the affidavit
evidence filed in this matter.
The Motions to Strike
[45]
The applicants
brought a motion to strike portions of the respondents’ evidence prior to
commencement of the hearing. The respondents then brought a cross-motion
seeking to strike portions of the affidavit of the applicants’ main affiant,
which Prothonotary Lafrenière described in his August 8, 2013 Order as being
essentially a “‘tit-for-tat’ reaction”, rather than one motivated by a genuine
concern about prejudice arising out of the affidavit in issue.
[46]
Prothonotary
Lafrenière agreed with the applicants that portions of the respondents’
affidavits “contain some hearsay, speculation, arguments and conclusions rather
than facts, and opinion evidence”. However, he was not persuaded that leaving
the impugned evidence in the record would give rise to any serious prejudice or
impede the orderly disposition of these proceedings. Consequently, he dismissed
both motions, without prejudice to the rights of the parties to renew their
arguments at the hearing on the merits.
[47]
At the hearing, the
parties agreed that they were content to leave the impugned portions of their
opponents’ evidence in the record, and to have their objections taken into
account by the Court in determining the weight to be ascribed to the competing
evidence. The applicants also confirmed that they are no longer seeking leave
to file further affidavits in this matter in response to some of the
respondents’ evidence.
[48]
In light of the
recent developments in this case, as well as the various concessions and
admissions made by counsel for the Ministers, it has not been necessary to
review the parties’ evidence in any detail in these reasons. While I agree with
the applicants that there are frailties in some of the respondents’ evidence, I
have nevertheless taken all of the evidence into account in arriving at my
decision.
The Ministers’ Explanations
[49]
Although the facts
giving rise to the delays in posting proposed recovery strategies differ
somewhat from species to species, the respondents highlight four central
challenges they say that they faced in preparing proposed recovery strategies
for the four species.
[50]
First, the enactment
of SARA required the Ministers to develop new policies, standards,
administrative structures and consultation processes. They also had to acquire
the scientific expertise that was required to implement the legislation. All of
this took time.
[51]
Secondly, several of
the respondents’ affiants attribute at least some of the delays in producing
recovery strategies to “organizational capacity issues”, including staff
turnover. Delays were also attributed to the need to manage competing legal
duties, including the need to consult with stakeholders including provincial
governments, First Nations, landowners and industry representatives.
[52]
It should, however,
be noted that although a lack of resources was a recurring theme in the
respondents’ evidence, counsel for the respondents advised the Court that he
had been specifically instructed not to raise a lack of resources as a
justification for the delay in posting proposed recovery strategies for the
four species.
[53]
Thirdly, the
Ministers say that they faced scientific challenges, particularly in relation
to the identification of critical habitat for the species in question.
[54]
“Critical habitat” is
defined in section 2 of SARA as “habitat that is necessary for the
survival or recovery of a listed wildlife species and that is identified as the
species’ critical habitat in the recovery strategy or in an action plan for the
species”. The identification of the species’ critical habitat is necessary to
the survival and recovery of a species: indeed, the preamble to SARA
describes the preservation of the habitat of species at risk as being “key to
their conservation”.
[55]
Finally, the Ministers
describe the challenges that they say they faced in responding to change, in
particular, the evolving understanding of the law resulting from various
decisions of this Court. For example, the Department of Fisheries and Oceans
undertook “an extensive policy analysis” in order to develop new operational
guidelines for identifying critical habitat in the wake of this Court’s
decisions in Environmental Defence Canada v. Canada (Minister of Fisheries
and Oceans), 2009 FC 878, 349 F.T.R. 225 (“Nooksack Dace”) and Georgia
Strait Alliance v. Canada (Minister of Fisheries and Oceans), 2010 FC 1233,
[2012] 3 F.C.R. 136 rev’d in part on other grounds 2012 FCA 40, 427 N.R. 110 (“Orca”).
The Consequences of the Ministers’
Failure to Act
[56]
The applicants point
out that the failure to post recovery strategies for the four species in a
timely manner has had adverse consequences for the species as it deprives them
of an identified critical habitat. This in turn prevents the implementations of
recovery measures, and denies the species the legal protection of their
critical habitat and the prohibition of its destruction.
[57]
The applicants are
particularly concerned that the critical habitat of the four species is at risk
from industrial development affecting the coast of British Columbia. As an
example, the applicants cite Enbridge’s proposed Northern Gateway pipeline
development project which, they say, will have a negative impact on all four of
the species at issue in these applications. I do not understand the respondents
to take issue with this proposition, although they do deny that recovery
strategies have been intentionally delayed in order to facilitate industrial
development.
[58]
The Ministers submit
that the work done in the preparation of proposed recovery strategies for the
four species was used by their Departments in formulating submissions to the
Enbridge Northern Gateway Project Joint Review Panel. The submissions related
to the potential impact of the project on the four species and potential
mitigation measures to lessen those impacts.
[59]
I accept that the
work done by the Ministers in relation to proposed recovery strategies for the
four species may well have been of assistance in formulating submissions to the
Enbridge Northern Gateway Project Joint Review Panel with respect to the
potential impact of the project on the four species.
[60]
That said, the
absence of posted recovery strategies deprives the Ministers of considerable
leverage in dealing with the impact of industrial development on species at
risk. Moreover, the making of submissions to a regulatory panel of this nature
cannot be equated to the level of protection that would be provided to the four
species, had recovery strategies been posted for them in a timely fashion. As
the applicants point out, the respondents’ statutory duties to prevent the
destruction of “critical habitat” are not generally triggered until such
habitat has been identified in a recovery strategy or action plan for the
species.
The Issues
[61]
The parties have
characterized the issues raised by these applications in different ways. I
agree with the respondents that the cases ultimately raise two fundamental
questions. The first is whether there has been a breach of the Ministers’
statutory duty to post proposed recovery strategies for the four species within
the statutory timelines. As noted earlier, the respondents concede that there
has indeed been such a statutory breach.
[62]
This leads us to the
second question, which is what consequences should flow from that breach? I
will deal with the issues identified by the applicants, including the relevance
of a standard of review analysis to this case and the legal nature of the
statutory timelines in issue, in that context.
Should Declaratory Relief be Granted?
[63]
The Ministers submit
that declaratory relief should not be granted in this case. According to the
Ministers, the fact that they have conceded that they were legally required to
meet the statutory timelines for the posting of proposed recovery strategies
and that they failed to do so means that declarations would serve no practical
utility.
[64]
In support of this
contention, the respondents rely on the decision of the Supreme Court of Canada
in Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011]
3 S.C.R. 535, at para. 14, where the Court stated that “Courts generally
do not make declarations in relation to matters not in dispute between the
parties to the litigation”. See also Solosky v Her Majesty the Queen,
[1980] 1 S.C.R. 821, 105 D.L.R. (3d) 745.
[65]
While this is unquestionably
true as a general proposition, the Court has a broad discretionary power in
relation to the granting of declaratory relief, and there are cases where the
granting of such relief may nevertheless be appropriate: see, for example, K'Omoks
First Nation v. Canada (Attorney General), 2012 FC 1160, 419 F.T.R. 144, at
para. 44. This is just such a case.
[66]
Declaratory relief
may address the legality of government action, both prospectively and
retrospectively: Reece v. Edmonton (City), 2011 ABCA 238, 335 DLR (4th)
600, at para. 163, per Chief Justice Fraser, dissenting, but not on this
point. Moreover, public officials are not above the law. If an official acts
contrary to a statute, the Courts are entitled to so declare: see Singh v. Canada (Minister of Citizenship and Immigration), 2010 FC 757, 372 F.T.R. 40, at para.
40, citing Canada v. Kelso, [1981] 1 S.C.R. 199 at 210.
[67]
A review of the
record in these matters gives rise to a number of concerns. The development of
a proposed recovery strategy for a species at risk is undoubtedly a complex
process involving the need to reconcile competing statutory requirements and
Departmental priorities, and to consult with multiple stakeholders, other
levels of government and First Nations. The process also presents the Ministers
with various administrative challenges, and involves an evolving base of
scientific knowledge. One has to assume, however, that Parliament knew what it
was doing when it established the timelines for the preparation of proposed
recovery strategies in sections 42 and 132 of SARA.
[68]
It is apparent that
the posting of proposed recovery strategies were delayed in these cases, in
part, as a result of a desire to achieve consensus amongst the stakeholders.
This is particularly so for the aquatic species under the jurisdiction of the
Minister of Fisheries and Oceans.
[69]
While the achievement
of a consensus may be desirable, it is not a legislative requirement for a
recovery strategy. Indeed, section 39 of SARA only contemplates that
there be cooperation with others “to the extent possible”. Subject to the
Ministers’ constitutional obligations to consult with First Nations, I agree
with the applicants that consensus should not be pursued at the expense of
compliance with the Ministers’ statutory obligations.
[70]
Furthermore, as one
of the Ministers’ own affiants has observed, a recovery strategy should be
science-based, not consensus-based: see the cross-examination of Robert McLean,
the Executive Director of Environment Canada’s Canadian Wildlife Service, at
pages 3007 and 3022 of the applicants’ record. See also Nooksack Dace,
at para. 41.
[71]
Insofar as the
scientific basis for the proposed recovery strategies is concerned, I agree
with the applicants that “the perfect should not become the enemy of the good”
in these cases. Section 38 of SARA (which incorporates the
“precautionary principle” into the Act) is very clear: the preparation of a
recovery strategy for a species at risk “should not be postponed for a lack of full scientific certainty”.
[72]
The precautionary
principle was discussed by the Supreme Court of Canada in 114957 Canada Ltée (Spraytech, Société
d'arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241. Citing the Bergen Ministerial
Declaration on Sustainable Development (1990), the Court noted that “[e]nvironmental
measures must anticipate, prevent and attack the causes of environmental
degradation”. As a result, “[w]here there are threats of serious or
irreversible damage, lack of full scientific certainty should not be used as a
reason for postponing measures to prevent environmental degradation”: at para.
31
[73]
Indeed, as Justice
Russell observed in his decision in the Orca case, “[e]ndangered species
do not have time to wait for [the competent minister] to ‘get it right’”: at
para. 66.
[74]
It is also important
to remember that proposed recovery strategies are, by their very nature, open
to change based upon additional input received by the competent minister
through the consultation process. Moreover, the content of final recovery
strategies and action plans are not cast in stone. SARA specifically
contemplates that amendments can be made to each document at any time (see
subsection 45(1) in the case of recovery strategies and subsection 52(1) in the
case of action plans).
[75]
It is also apparent from
a review of the record that conscious decisions were made from time to time
within the Ministers’ Departments to delay or defer the preparation of proposed
recovery strategies for the four species.
[76]
By way of example, in
the case of the Marbled Murrelet, multiple proposed recovery strategies were
prepared for the bird between 2003 and 2007. A proposed recovery strategy was
sent to the headquarters of Environment Canada’s Canadian Wildlife Service for
approval and posting in February of 2008 (eight months after the expiry of the
relevant statutory timeline for the posting of the document).
[77]
According to the
respondents’ evidence, the proposed recovery strategy was then “queued for
review and approval”. However, it was not reviewed by headquarters personnel
for over a year. When the document was finally reviewed by the Executive
Committee of the Canadian Wildlife Service in the Spring of 2009, certain
rewrites to the document were required, although I note that there is some
disagreement between the respondents’ affiants as to the extent of the
additional work that was necessary in order to finalize the document at the
regional level.
[78]
According to the
affidavit of Dr. Barry Douglas Smith, the Regional Director of Environment
Canada’s Canadian Wildlife Service’s Pacific and Yukon Region, the re-writes
were completed with the intent to post the proposed recovery strategy for the
Marbled Murrelet in the public registry by the summer of 2009: Smith affidavit
at para. 80. However, the release of this Court’s decision in Alberta
Wilderness Assn. v. Canada (Minister of Environment), 2009 FC 710, 349
F.T.R. 63 (“Sage Grouse”) in the summer of 2009 caused publication to be
postponed so as to allow for at least a partial identification of the species’
critical habitat.
[79]
What happened next?
The short answer is: not much. Dr. Smith deposes that due to staff shortages
and “the need to make progress against the large number of overdue recovery
strategies for other species”, work to identify the critical habitat for the
Marbled Murrelet was not completed in 2009-2010 and the decision was made to
defer the work to the next financial year: Smith affidavit at para. 84.
[80]
However the work was
not completed in the 2010-2011 financial year either. Dr. Smith explains in his
affidavit that “due to significant capacity constraints” he “deemed it an
acceptable risk to prioritize work on species at risk with smaller populations
and more immediate threats”: Smith affidavit at para. 85.
[81]
Staffing issues also
appear to have prevented any substantive work being carried out on the proposed
recovery strategy for the Marbled Murrelet in the 2011-2012 fiscal year.
Indeed, it was not until it was identified as a priority matter in November of
2012 that substantive work on a proposed recovery strategy for the Marbled
Murrelet recommenced - after this litigation had been started, and more than
five years after SARA required that a proposed recovery strategy be
posted for the bird: Smith affidavit at paras. 86-88.
[82]
As was noted earlier,
a proposed recovery strategy for the Marbled Murrelet was posted in the public
registry on January 7, 2014 - the day before the commencement of this hearing,
and some six and half years after the statutory time limit for the posting of
such a strategy had passed.
[83]
While the cause of
much of the delay described by Dr. Smith in his affidavit ultimately boils down
to a question of resources, it bears repeating that the Ministers expressly do
not rely on a lack of resources as a justification for the delay in relation to
the species at issue in these applications.
[84]
The commencement of
this litigation has caused the responsible Ministers to put these files “on the
top of the pile”, with the result that proposed recovery strategies have now
been posted for the four species. However, the flurry of recent activity on
these files does not address any deterioration in conditions for the four
species at issue that may have occurred in the intervening years when the
Ministers were in breach of their statutory duties.
[85]
It is, moreover,
apparent that the delays encountered in these four cases are just the tip of
the iceberg. There is clearly an enormous systemic problem within the relevant
Ministries, given the respondents’ acknowledgment that there remain some 167
species at risk for which recovery strategies have not yet been developed. In
this regard it is noteworthy that the Ministers acknowledge that they have not
complied with the statutory timelines for the preparation and posting of
proposed recovery strategies for any of the other 167 species.
[86]
Indeed, it is
reasonable to assume that the acceleration of progress on these four cases in
response to the commencement of this litigation could well have caused further
delays in the preparation of recovery strategies for other species
[87]
However, responding
on an ad hoc basis to external pressures such as pending litigation
fails to take into account the fact that Parliament has itself assigned
priorities in dealing with these matters, by fixing different timelines for the
preparation of proposed recovery strategies for listed species that are based
upon the extent to which the species are at risk.
[88]
The respondents agree
that the applicants should not be expected to commence 167 additional
applications for judicial review in order to compel the responsible Ministers
to comply with their statutory duties. Nor would this be an answer to the
underlying systemic problems that exist in the species at risk protection
process, as clearly one cannot prioritize every case without rendering prioritization
meaningless.
[89]
I agree with the
respondents that bad faith has not been demonstrated in these cases. However,
the respondents also acknowledge that bad faith is not required for declaratory
relief to be granted.
[90]
The Supreme Court of
Canada has observed that adherence to the rule of law is a major feature of the
Canadian democracy: Doucet-Boudreau v. Nova Scotia (Minister of Education),
2003 SCC 62, [2003] 3 S.C.R. 3 at para. 31. Moreover, as Chief Justice Fraser
observed in her dissenting opinion in Reece, the rule of law allows
citizens to come to the Courts to enforce the law as against the executive
branch of government.
[91]
Chief Justice Fraser went
on to observe that “… [C]ourts have the right to review actions by the
executive branch to determine whether they are in compliance with the law and,
where warranted, to declare government action unlawful. This right in the hands
of the people is not a threat to democratic governance but its very assertion”:
at para. 159.
[92]
It is simply not
acceptable for the responsible Ministers to continue to miss the mandatory
deadlines that have been established by Parliament. In the circumstances of
these cases, it is therefore both necessary and appropriate to grant the
applicants the declaratory relief that they are seeking, both as an expression
of judicial disapproval of the current situation and to encourage future
compliance with the statute by the competent ministers.
[93]
Indeed, the issues
that were originally raised by these applications are “genuine, not moot or
hypothetical” insofar as there remain numerous species at risk for which the
posting of proposed recovery strategies is long overdue: Danada Enterprises
Ltd. v. Canada (Attorney General), 2012 FC 403, 407 F.T.R. 268 at para. 67.
I am, moreover, satisfied that a declaration will serve a useful purpose and
will have a “practical effect” in resolving the problems identified by these
cases: see Solosky, above, at 832-833.
[94]
Accordingly, a
declaration will issue declaring the Ministers’ failure to include proposed
recovery strategies for the four species in the public registry within the
statutory time periods set out in sections 42 and 132 of SARA to be
unlawful. Given that the statutory timeline for posting final recovery
strategies for three of the four species has not yet passed, and there appears
to have been substantial compliance with the statutory timelines for the
posting of a final recovery strategy for the Pacific Humpback Whale, I decline
to grant any declaratory relief in this regard.
[95]
Before leaving this
issue, I would note that the parties spent some time in their submissions
discussing whether the timelines established by SARA for the posting of
proposed recovery strategies were “mandatory” or “directory”. While asserting
that this is “an irrelevant distraction” in this case, the applicants
nevertheless submit that the timelines are “mandatory”, as SARA provides
that relevant competent minister “must” post proposed and final recovery
strategies within certain specified timeframes.
[96]
In contrast, the respondents
contend that the SARA timelines are not mandatory in the “administrative
law sense”, but are rather “directory”. In support of this contention, the
respondents point out that the duty being discharged is a public one, and the
Act does not provide for a penalty for failure to comply with the timelines in
issue. Moreover, the balance of inconvenience suggests that the timelines
should be interpreted as directory rather than mandatory because interpreting
them as mandatory would be contrary to achieving the goals of SARA.
[97]
In particular, the
respondents say that interpreting the timelines as mandatory would mean that
the Ministers would lose the power to post recovery strategies for the species
at risk once the deadlines set out in the Act had passed
[98]
It is apparent from
the jurisprudence cited by the parties that the significance of the distinction
between “mandatory” or “directory” timelines is that, as the respondents
suggest, a public authority exercising a statutory power loses jurisdiction
once the timeline has passed: see Reference re Manitoba Language Rights
(Man.), [1985] 1 S.C.R. 721, [1985] S.C.J. No. 36, at para. 35.
[99]
In this case, the
parties all agree that the Ministers do not lose jurisdiction after the
expiry of the time periods set out in sections 42 and 132 of SARA, and
can continue to develop and post proposed recovery strategies after expiry of
the time periods specified in the legislation.
[100]
Given the parties’
agreement on this point, I do not need to decide whether the timelines contained
in sections 42 and 132 of SARA are mandatory or directory. However, the
fact that the timelines may be directory rather than “mandatory” (in the legal
sense) does not mean that they are optional, or that the responsible Ministers
do not have to comply with them. Indeed, counsel for the Ministers acknowledged
that the Ministers are indeed required to comply with the statute in this
regard.
[101]
To state the obvious,
the Species at Risk Act was enacted because some wildlife species in Canada are at risk. As the applicants note, many are in a race against the clock as
increased pressure is put on their critical habitat, and their ultimate
survival may be at stake.
[102]
The timelines
contained in the Act reflect the clearly articulated will of Parliament that recovery
strategies be developed for species at risk in a timely fashion, recognizing
that there is indeed urgency in these matters. Compliance with the statutory
timelines is critical to the proper implementation of the Parliamentary scheme
for the protection of species at risk.
The Applicants’ Request for Mandamus
[103] The next issue for consideration is the
applicants’ request for mandamus.
[104]
The applicants’
Notices of Application seek orders of mandamus compelling the relevant competent
minister to include a proposed recovery strategy for each of the four species
in the public registry within 30 days of the Court’s judgment in this matter.
[105]
Orders of mandamus
are also sought to compel the relevant competent minister to include final
recovery strategies for the four species in the public registry within 90 days
of the Court’s judgment.
[106]
As noted earlier,
both a proposed and a final recovery strategy have already been posted for the
Pacific Humpback Whale, with the result that the applicants no longer seek an
order of mandamus in this regard.
[107]
Insofar as the other
three species are concerned, the Ministers’ memorandum of fact and law states
that they do not dispute that most of the elements of the test for mandamus
established by Federal Court of Appeal in Apotex Inc. v. Canada (Attorney
General), [1994] 1 F.C. 742, [1993] F.C.J. No. 1098, have either been met
in this case, or are not applicable.
[108]
However, the
Ministers took the position in their memorandum that the right to the
performance of their statutory duty had not been established insofar as the
requests for mandamus with respect to the posting of proposed recovery
strategies for the three remaining species are concerned. This is because they
say that the delay in these cases is not unreasonable in light of the
explanations that have been provided.
[109]
The applicants submit
that the Federal Court of Appeal has already determined in its decision in Orca
that the standard of review applicable to the Ministers’ interpretation of
the provisions of SARA is that of correctness: see Georgia Strait
Alliance v. Canada (Minister of Fisheries and Oceans), 2012 FCA 40, [2012]
F.C.J. No. 157, at paras. 6 and 98-105.
[110]
In light of this, the
applicants say that the Ministers should not be allowed to do an ‘end run’
around the Federal Court of Appeal’s decision in Orca by applying a
reasonableness analysis in assessing the Ministers’ conduct when deciding
whether mandamus should issue.
[111]
I have some
difficulty with the applicants’ submissions on this point, given that there is
no disagreement between the parties as to the proper interpretation of the
relevant provisions of SARA.
[112]
What is at issue in
these proceedings is not the judicial review of a Ministerial decision or
action, but rather an attempt to compel the performance of a statutory duty in
light of prolonged inaction. As such the question is whether the requirements
of mandamus have been met. One of these involves the determination of
whether the Ministers have provided a reasonable explanation for the delay.
[113]
However, as will be
explained below, I do not have to finally determine whether a standard of
review analysis should enter in the equation in applications for mandamus
in light of the recent developments in these cases.
[114]
The Ministers’
position has evolved as a result of these developments. At the hearing of this
matter, the Ministers submitted that the request for mandamus in
relation to the inclusion of proposed recovery strategies in the public
registry for each of the four species is now moot, given that proposed recovery
strategies have now been posted for all four of the species.
[115]
While not explicitly
abandoning this aspect of their application for mandamus, I do not
understand the applicants to still be seriously pressing their request for
relief with respect to the proposed recovery strategies. Even if I am mistaken
in this understanding, I agree with the Ministers that this aspect of the
applicants’ request for mandamus is indeed now moot.
[116]
The next issue, then,
is the applicants’ request for orders of mandamus compelling the
relevant competent minister to include a final recovery strategy in the public
registry within 90 days of the Court’s judgment for each of the three species
for which such strategies remain outstanding.
[117]
The Ministers resist
this relief being granted, submitting that the applicants’ request for mandamus
is premature. In support of this contention they point out that the 60 day time
period set out in subsection 43(1) allowing for public comments on the proposed
recovery strategies and the additional 30 day period set out in subsection
43(2) of SARA for the finalization of such strategies have not yet
elapsed. As a result, the Ministers say that there is not yet a public legal
duty to act.
[118]
Given that the
Minister of the Environment was prepared to make a commitment to post a
proposed recovery strategy for the Southern Mountain Caribou by a specified
date, the Court asked counsel for the respondents whether the Ministers were
prepared to offer a similar commitment with respect to the posting of final
recovery strategies for the Southern Mountain Caribou, the Marbled Murrelet,
and the Nechako White Sturgeon within the 90 day period contemplated by section
43 of SARA.
[119]
Counsel advised that
the Ministers could offer no such commitment as they do not yet know the nature
of the comments that will be offered during the 60 day period, nor can they
currently anticipate the nature and extent of the modifications that may need
to be made to the proposed recovery strategies before the documents can be finalized.
[120]
Counsel was then
asked if this meant that the applicants would have to commence fresh
applications for mandamus in the event that the Ministers did not post
final recovery strategies for one or more of the three species at issue within
the time period set out in section 43 of SARA.
[121]
Counsel for the
Ministers agreed that the applicants should not be obliged to start over,
suggesting that the better course would be for the Court to retain jurisdiction
over these matters so as to allow the applicants to bring this aspect of their
claim for relief back before this Court in the event that they become concerned
that final recovery strategies for any of the three species in issue have not
been finalized in a timely manner.
[122]
The applicants would
prefer that the Court make orders of mandamus to compel the performance
of the Ministers’ statutory duty to provide final recovery strategies within 90
days of the publication of the proposed recovery strategies in the public
registry. However, they agree that in the event that the Court is not prepared
to make such an order, it should indeed retain jurisdiction in order to deal
with future developments in these matters in the event that it becomes
necessary to do so.
[123]
I agree with the
Ministers that the applicants’ request for mandamus in relation to the
posting of final recovery strategies for the three species in question is
indeed premature. The timelines contained in section 43 of SARA are only
triggered once a proposed recovery strategy has been included in the public
registry. Those timelines have not yet expired, with the result that there is
currently no public legal duty on the part of the Ministers to act in relation
to the posting of final recovery strategies for the Southern Mountain Caribou,
the Marbled Murrelet, and the Nechako White Sturgeon.
[124]
An order of mandamus
will not be granted to compel a public official to act in a specified manner if
he or she is not under an obligation to act as of the date of the hearing: Apotex,
above at para. 51. See also British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41 at para. 157, 114 D.L.R. (4th) 193, at
para. 157.
[125]
I concur with the
parties that it is appropriate for the Court to retain jurisdiction in this
matter. This would obviate the need for the applicants to start over with fresh
applications for mandamus to compel the performance of the Ministers’
statutory duties in the event that final recovery strategies are not posted in
the public registry in a timely manner. This would obviously be a more
efficient use of the resources of all concerned.
[126]
I note that a similar
approach has been taken by this Court in immigration matters: see Zaib v. Canada (Minister of Citizenship and Immigration), 2008 FC 687, [2008] F.C.J. No. 880 and Rousseau
v. Canada (Minister of Citizenship and Immigration), 2004 FC 602, 252
F.T.R. 309. This Court also suspended the granting of relief in another SARA
case so as to allow the responsible Minister to comply with his statutory
duties: see Athabasca Chipewyan First Nation v. Canada (Minister of the
Environment), 2011 FC 962, [2011] 4 C.N.L.R. 17 at para. 73.
[127]
The parties have
agreed to the terms of the order that they seek. In accordance with this
agreement, I will adjourn the applicants’ application insofar as it seeks mandamus
to compel the posting of final recovery strategies for the Southern Mountain
Caribou, the Marbled Murrelet, and the Nechako White Sturgeon.
[128]
If necessary, a case
management conference will be scheduled with the parties to be held in late April
or early May, following the expiry of the last of the 60 and 30 day periods
referred to in section 43 of SARA for the posting of final recovery
strategies for these species.
[129]
The parties are
directed to consult with one another with respect to the progress of these
matters in advance of the case management conference, in order to determine
whether the conference is necessary, and to attempt to resolve any outstanding
issues without the need for further judicial intervention.
[130]
In the event that it
is necessary to proceed, the respondents will advise the Court at the case
management conference as to whether the relevant final recovery strategies have
been posted in the public registry for the three species still at issue. The
applicants will advise the Court whether they intend to pursue their
applications for mandamus in relation to the release of final recovery
strategies for some or all of these species.
[131]
In the event that the
applicants do intend to pursue their requests for orders of mandamus,
the Court will establish a schedule for the filing of further evidence,
cross-examinations (if any) on that further evidence, the exchange of written
submissions (including reply submissions from the applicants, if necessary),
and any further appearances of the parties that may be required.
Costs
[132] These applications have been brought by
the applicants, acting in the public interest, to compel the Ministers to
perform their statutory duties under SARA, something that they
admittedly have not done.
[133]
The commencement of
this litigation has had the salutary effect of prompting the Ministers to
prepare and post proposed recovery strategies for the four species at issue in
these applications. The fact that I have not acceded to the applicants’ request
for mandamus in relation to the posting of proposed recovery strategies
is no reflection on the merits of their claim, but is rather a function of the
Ministers’ last-minute performance of their statutory duties in this regard.
[134]
The applicants have,
moreover, succeeded in persuading me that the granting of declaratory relief is
appropriate in this case.
[135]
In these
circumstances I am satisfied that the applicants should have their costs of
these applications to date. In accordance with the agreement of the parties,
these costs are fixed in the amount of $22,500, inclusive of disbursements.
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