[co-author: Valentina Caen, Articling Student]
Canadian courts released two judicial review decisions in May regarding the implementation of species at risk legislation, which indicate a trend towards a broad, expansive interpretation of such laws.
FEDERAL COURT OF APPEAL UPHOLDS CONSTITUTIONAL VALIDITY OF EMERGENCY ORDER POWERS UNDER SARA
On May 15, 2020, the Federal Court of Appeal (Appeal Court) upheld the validity of the emergency order stopping a development proposal near Montréal in order to protect the western chorus frog, and in doing so, confirmed that federal orders under s. 80 of SARA affecting private land are constitutional. For more information about the emergency order and the prior court decision, please see our July 2016 Blakes Bulletin: Federal Government Order to Protect Frog Habitat Stops Land Development in Suburban Montréal and September 2018 Blakes Bulletin: Court Rules SARA Emergency Orders are Valid and Compensation May Be Available.
The Appeal Court determined that the emergency order power, which has only been used twice, is narrow in scope and intended to deal with a situation where a species’ immediate survival is threatened and requires urgent action and, as such, does not invade provincial jurisdiction. The Appeal Court noted that the emergency provision, which specifically applies to private land for non-federal species, does not authorize the governor in council to impose measures to protect the species and designated habitat, but only to enact provisions prohibiting activities likely to harm the species and that habitat.
Previous decisions from Canadian courts have established that environmental protection is one of the ‘evils’ that Parliament can address through its jurisdiction over criminal law. The Appeal Court relied on these decisions to confirm that federal jurisdiction over criminal law must allow Parliament to act to prevent the loss of wildlife species, in particular in the face of a threat of imminent harm. The precise identification of prohibited activities and the area within which the habitat of a listed wildlife species must be protected was also considered by the Appeal Court to be a more adequate approach than an unnecessarily broad measure that may have a disproportionate impact on the exercise of provincial powers. In the Appeal Court’s view, providing the governor in council with the authority to carefully tailor the prohibited activity to the circumstances in which the imminent threat to the survival or recovery of a species arises was a valid exercise of Parliament’s criminal law power.
The Appeal Court also confirmed that the Minister’s decision not to compensate the appellant could be the subject of a separate action.
NOVA SCOTIA COURT ORDERS THE GOVERNMENT TO IMPLEMENT THE ESA
On May 29, 2020, the Nova Scotia Supreme Court (N.S. Supreme Court) allowed a judicial review brought by an individual and several groups of naturalists, supported by the intervenor East Coast Environmental Law Association, of the failure of the provincial Minister of Lands and Forestry (Minister) to implement the habitat protections under the Nova Scotia Endangered Species Act (ESA).
The ESA requires the Minister to appoint recovery teams for species which are listed as endangered or threatened, and to prepare a recovery plan within statutory deadlines. Among other things, recovery plans must identify the habitat of the species and areas to be considered for designation as core habitat. Designation as core habitat can result in regulations providing protection for the habitat, or orders from the Minister regarding activities impacting it. The government must prepare management plans for species listed as vulnerable.
The applicants alleged that the government had failed to implement the recovery and management planning and core habitat identification for six representative species: mainland moose, ram’s-head lady slipper, Canada warbler, black ash, wood turtle and eastern wood pewee. The evidence before the N.S. Supreme Court demonstrated the planning processes were in various stages of implementation, although certain aspects had occurred only after the judicial review application was filed.
The N.S. Supreme Court found that the directory nature of the term “shall” used in the ESA did not mean the Minster had discretion not to comply with his duties to form the recovery teams and prepare the requisite plans. The Court also relied upon the precautionary principle, describing it as a legislative tool that prevents government from pointing to imperfect data as an excuse for failing to implement a statutory duty. Finding that the Minister exhibited a “chronic and systematic failure” to implement actions required to be taken under the ESA, the Court allowed the judicial review. The Court also agreed to issue orders to the Minister to ensure that the duties would be carried out, but declined to set deadlines or to order court supervision as had been requested by the applicants.
Both courts used very strong language in reaching their respective decisions, such as the Appeal Court’s use of the term “moral obligation” in describing the duty to prevent the disappearance of wildlife species. There is no question that courts are prepared to hold the federal and provincial governments’ feet to the fire if they fail to implement the various laws regulating activities impacting such species, and to interpret the laws generously so as to ensure they remain valid. Litigants can expect this trend will continue. Despite the differences in statutory schemes, courts are consistently giving these regimes a broad and liberal interpretation to ensure effective implementation.