Environmental Defence Canada v. Minister of Fisheries and Oceans.

The Federal Court has delivered the present decision concerning the federal Species at Risk Act, S.C. 2002, c. 29 (SARA) and the identification of critical habitat for species at risk listed in Schedule I of SARA (i.e., a listed species). Section 37 of the SARA generally provides that the competent Minister must prepare a recovery strategy for species on Schedule I of the SARA. The SARA prescribes a two-step recovery planning process for endangered species. The first step is the preparation and posting of a recovery strategy and the second step is the development and posting of an action plan to implement the recovery strategy. Section 41 of the SARA sets out the content of a recovery strategy and depends on whether the Minister has determined that the recovery of the listed species is feasible or not. Paragraph 41(1)(c) of the SARA provides that a recovery strategy must include “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”. In this case the applicants argued that the MFO had failed to meet the requirements of paragraph 41(1)(c) of the SARA regarding the Final Recovery Strategy for the Nooksack Dace, a small stream-dwelling minnow listed in Schedule I of the SARA. The Recovery Team that prepared the Final Recovery Strategy identified the geospatial locations of critical habitat, but the MFO ultimately decided to remove that information from the Final Recovery Strategy and provide it in a separate document, available upon request. A significant qualitative description of what critical habitat would consist of (“attributes”) remained in the Final Recovery Strategy. The rationale for the severing step was that the second document could then be scientifically peer-reviewed, according to department policy, and be used in an action planning process which would include socio-economic analysis as well as consultation with affected interests (the initial Final Recovery Strategy document identified all known Nooksack Dace habitat as critical habitat). The applicants argued this was contrary to law, and the Court agreed paragraph 41(1)(c) is mandatory and there is no ministerial discretion provided for in identifying critical habitat. The Court observed that socio-economic considerations could not be considered in developing a recovery strategy, only in developing an action plan. This is because recovery strategies are to provide baseline biology and ecology information about a species, and a broad strategy to address conservation threat. In contrast, action plans are intended to describe discrete measures to be taken to achieve a species’ survival and recovery, including evaluation of the socio-economic costs and benefits of such measures. As a result, the language in the Recovery Strategy suggesting that a quantity of proposed critical habitat sufficient to ensure the survival and recovery of Nooksack dace will be designated through the action planning process, which will include socioeconomic analysis and consultation with affected interests, was wrong at law. The Court concluded that habitat focuses on a location with special identifiable features and essential attributes. In the case of the Nooksack Dace, this concerned “riffles” (shallow turbulent water moving over rocky substrate). Thus, as a practical matter, the habitat and critical habitat for the Nooksack Dace must legally identify the riffles feature, without regard for the broader implications of identifying particular riffles features as critical habitat.