Centre Québécois du droit de l’environnement v. Canada (Environment)

Centre Québécois du droit de l’environnement v. Canada (Environment)
Court (s) Database
Federal Court Decisions
Date
2015-06-22
Neutral citation
2015 FC 773
File numbers
T-996-14
Decision Content
Date: 20150622
Docket: T-996-14
Citation: 2015 FC 773
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 22, 2015
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
CENTRE QUÉBÉCOIS DU DROIT DE L’ENVIRONNEMENT
and
NATURE QUÉBEC
Applicants
and
THE MINISTER OF THE ENVIRONMENT
and
THE ATTORNEY GENERAL OF CANADA
Respondents
and
THE CITY OF LA PRAIRIE
Intervener
JUDGMENT AND REASONS
[1] The applicants, the Centre québécois du droit de l’environnement and Nature Québec, are two non‑profit organizations working in the field of protection of the environment and of species at risk. They are challenging the legality of a decision dated March 27, 2014, by which the Minister of the Environment refused to recommend to the Governor in Council that an emergency order be made under section 80 of the Species at Risk Act, SC 2002, c 29 [federal Act], to provide for the protection of the Western Chorus Frog (Pseudacris triseriata), a threatened wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction.
[2] For the reasons that follow, this application for judicial review should be allowed.
I LEGAL ENVIRONMENT [3] To understand the real issues in this case and the nature of the specific questions that arise, it seems necessary to situate the Minister’s refusal within the legal environment—international and domestic—for the protection of species at risk.
[4] While this is not a case involving cruelty to animals, it must be understood that the protection of species at risk is premised on the same type of philosophical and legal considerations. The Honourable Antonio Lamer noted in 1978, as a Quebec Court of Appeal judge, that [translation] “[w]ithin the hierarchy of our planet animals occupy a place which, if it does not give rights to animals, at least prompts us, as animals who claim to be rational beings, to impose on ourselves behaviour which will reflect in our relations with animals those virtues we seek to promote in our relations among humans. . . . Thus humans, by the rule of s. 402(1)(a) [of the Criminal Code], do not renounce the right given to them by their position as supreme creatures to put animals at their service to satisfy their needs, but impose on themselves a rule of civilization by which they renounce, condemn and repress all infliction of pain, suffering or injury on animals which, while taking place in the pursuit of a legitimate purpose, is not justified by the choice of the means employed” (R v Ménard, [1978] JQ No 187 (QC CA), at paras 19 and 21).
[5] Cruelty to animals is inflicted by exceptionally ill‑intentioned individuals whose actions are severely punished by society, and is a crime. Its suppression is therefore within the power of Parliament under subsection 91(27) of the Constitution Act, 1867, 30 & 31 Victoria, c 3. But humans are also gregarious beings who themselves live in society in an environment inhabited by all kinds of animal and plant species. What happens when humans, as supreme creatures pursuing their civilizing mission, settle in places where, just yesterday, the American eastern cougar or the Prairie grizzly bear reigned supreme over vast areas of land with the wolverine feared by our forebears? And when human activity destroys in its wake the natural habitat of all these wildlife species—animals and varieties of plants—that cannot tolerate urban life or agriculture, to the point that their survival is threatened in the relatively short to medium term? Have we collectively imposed on ourselves a rule of civilization by which we must prevent the annihilation of individuals of a threatened wildlife species and the destruction of their natural habitat?
[6] This does seem to be the case, for otherwise the United Nations Convention on Biological Diversity, June 5, 1992, 1760 UNTS 79 [CBD], which entered into force on December 29, 1993, would not have been ratified by 196 states parties, including Canada. The otherness between humans and animals, between owners and their property, between people and things without an owner, has given way to a universal legal concept whereby wildlife species and ecosystems are part of the world’s heritage and it has become necessary to preserve the natural habitat of species at risk. The Species at Risk Act, SC 2002, c 29 [federal Act], which was assented to on December 12, 2002, is in fact intended to implement Canada’s obligations under the CBD. This is reflected in the fact that, in the preamble to the federal Act, the Government of Canada formally sets out its commitment to conserving biological diversity and to the principle that, if there are threats of serious or irreversible damage to a wildlife species, cost‑effective measures to prevent the reduction or loss of the species should not be postponed for a lack of full scientific certainty [precautionary principle].
[7] The federal Act is binding not only on Her Majesty in right of Canada but also on Her Majesty in right of a province (section 5). Moreover, the Supreme Court of Canada noted in 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40, that the precautionary principle may now be a norm of customary international law (at para 32), which justifies a dynamic and liberal interpretation of the provisions of the federal Act, the purposes of which are, on the one hand, to prevent species from being extirpated or becoming extinct and, on the other, to provide for the recovery of 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 (section 6 of the federal Act).
[8] Any sustainable development requires the adoption of government policies based on the precautionary principle, especially since administrative laissez-faire contributes, along with uncontrolled—and irresponsible—human activity, to the destruction of natural habitats and the loss of wildlife species. It is a panacea to think that the enactment of legislation or regulations eliminates the threats: without a specific action plan, without concrete action on the ground, the survival and recovery of species at risk are irreparably compromised. From this perspective, the CBD therefore provides for general measures that must be taken by the states parties for conservation and sustainable use. Implementation of the measures specified in the CBD implies that the conservation of wildlife species in Canada is a responsibility shared by the country’s governments and that cooperation among them is an important priority in order to establish laws and complementary programs that can ensure the protection and recovery of species at risk in Canada.
[9] In addition to the federal Act, account should be taken of the Act respecting threatened or vulnerable species, CQLR, c E‑12.01 [Quebec Act], and the Endangered Species Act, 2007, SO 2007, c 6 [Ontario Act]. These two statutes in turn incorporate the CBD’s general principles in the provincial sphere and supplement the federal scheme for the protection and recovery of species at risk from a sustainable development perspective. The Quebec Act (1999) makes the Minister of Sustainable Development, Environment and Parks responsible for proposing to the province’s government a policy of protection and management of designated threatened or vulnerable species or of species likely to be so designated, while the Act respecting the conservation and development of wildlife, CQLR, c C‑61.1, establishes various prohibitions that relate to the conservation of wildlife resources. The Ontario Act, which is more recent (2007), is a complete code dealing with extinct, extirpated, endangered, threatened and special concern species. Indeed, the following is noted in the preamble to the Ontario Act: “Biological diversity is among the great treasures of our planet. It has ecological, social, economic, cultural and intrinsic value. Biological diversity makes many essential contributions to human life, including foods, clothing and medicines, and is an important part of sustainable social and economic development. Unfortunately, throughout the world, species of animals, plants and other organisms are being lost forever at an alarming rate. The loss of these species is most often due to human activities, especially activities that damage the habitats of these species. Global action is required. . . . In Ontario, our native species are a vital component of our precious natural heritage. . . .”
[10] Parliament and the provincial or territorial legislatures are gambling that the governments and people concerned will step up before the decline of a species in Canada becomes irreversible, which is why it is important that the departments and ministries concerned adopt recovery strategies and action plans as soon as possible. That being said, before going any further, it is important not to confuse the residence of an individual with the critical habitat of a species. Under the federal Act, the concept of “residence” refers to “a dwelling‑place, such as a den, nest or other similar area or place, that is occupied or habitually occupied by one or more individuals during all or part of their life cycles, including breeding, rearing, staging, wintering, feeding or hibernating” (section 2 of the federal Act). By contrast, the concept of “critical habitat” is much broader: it refers to “the 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” (section 2 of the federal Act). While establishing the Canadian Endangered Species Conservation Council [CESCC] and the Committee on the Status of Endangered Wildlife in Canada [COSEWIC] as independent expert bodies, the federal Act contains both prohibitive provisions—reinforced by a penal component—and regulatory provisions that are designed to ensure the survival and recovery of any threatened wildlife species listed on the List of Wildlife Species at Risk set out in Schedule 1 to the federal Act [federal List] and that can ensure the protection of their critical habitat.
[11] With regard to the general prohibitions, subsection 32(1) of the federal Act provides that “[n]o person shall kill, harm, harass, capture or take an individual of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species”, while section 33 of the federal Act provides that “[n]o person shall damage or destroy the residence of one or more individuals of a wildlife species that is listed as an endangered species or a threatened species, or that is listed as an extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada”. A contravention of subsection 32(1) or section 33 of the federal Act constitutes an indictable offence or a summary conviction offence subject to heavy fines (subsections 97(1) and (1.1) of the federal Act).
[12] In this case, sections 32 and 33 of the federal Act currently apply only to Western Chorus Frog populations living on federal land (section 2). This is because, with respect to individuals of a wildlife species listed on the federal List that is not an aquatic species or a species of birds that are migratory birds protected by the Migratory Birds Convention Act, 1994, SC 1994, c 22, sections 32 and 33 of the federal Act do not apply in lands in a province (or a territory) that are not federal lands unless an order is made expressly providing that they apply (subsections 34(1) and 35(1) of the federal Act). However, such an order will be made by the Governor in Council only on the recommendation of the Minister of the Environment, who, after consultation with the appropriate provincial or territorial minister (section 2), must be satisfied that the laws of the province (or the laws of the territory) do not effectively protect the species or the residences of its individuals (subsections 34(3) and 35(3) of the federal Act). In this case, no order has been made under subsection 34(1) or 35(1) of the federal Act to make sections 32 and 33 applicable in relation to the Western Chorus Frog.
[13] With regard to regulations, where a species is identified as endangered, threatened or extirpated, the federal Act requires the competent minister (section 2) to publish a proposed recovery strategy within a short period of time—here, within two years after the species is listed on the federal List, since the Western Chorus Frog is a threatened species (subsection 42(1) of the federal Act). The publication of the proposed strategy enables any person to make useful representations. The Minister must then quickly publish the finalized version of the recovery strategy (see the short time limits in section 43 of the federal Act). In the meantime, the recovery strategy must be prepared in cooperation with the minister of the province (or territory) where the species is found and in consultation with any landowners affected by the strategy (paragraph 39(1)(a) and subsection 39(3) of the federal Act).
[14] The precautionary principle expressly applies to any recovery strategy (section 38 of the federal Act). In this case, if the competent minister is of the opinion that the recovery of the species is feasible, the provisions in section 41 are mandatory and the competent minister must identify the species’ critical habitat based on the best available information, including the information provided by COSEWIC, while the recovery strategy must include examples of activities that are likely to result in its destruction. See paragraph 41(1)(c) of the federal Act; Environmental Defence Canada v Canada (Fisheries and Oceans), 2009 FC 878, at para 40; and Alberta Wilderness Association v Canada (Environment), 2009 FC 710, at para 25. In addition, based on the time lines included in the recovery strategy (paragraph 41(1)(g) of the federal Act), the competent minister must prepare one or more action plans containing measures to protect the critical habitat and to implement the recovery strategy (sections 47 and 49 of the federal Act). The competent minister must monitor the implementation of an action plan and the progress towards meeting its objectives five years after the plan comes into effect. A copy of the minister’s report must be included in the federal Public Registry (section 55 of the federal Act).
[15] With regard to the protection of critical habitat itself, sections 56 et seq. of the federal Act adopt a general framework that also resembles sections 32 et seq. discussed above. If the critical habitat of the listed endangered species or the listed threatened species is on federal lands, the purpose of section 58 of the federal Act is to ensure that, within 180 days after the recovery strategy or action plan that identified the critical habitat is included in the federal Public Registry, all of the critical habitat is protected (section 57 and subsection 58(1) of the federal Act). But once again, the federal Act brings into play a series of external considerations—the wishes of provincial or territorial authorities—with regard to the applicability in a province or territory of the prohibition against destroying any part of the critical habitat that is not part of federal lands. See sections 50 to 61 of the federal Act. However, the Minister of the Environment must recommend that an order be made to apply the prohibition if he or she is of the opinion that the particular portion of the critical habitat is not protected by the federal Act and that the laws of the province or territory do not adequately protect the critical habitat (subsection 61(4) of the federal Act). Clearly, the mechanisms for implementing the federal Act are very cumbersome and depend exclusively on the discretion of the various levels of government, which means that, after a wildlife species is listed on the federal List, several more years may pass before concrete measures are taken in a province or territory to protect populations, the residence of individuals and the species’ critical habitat.
[16] That being said, in the province of Quebec, the Western Chorus Frog was officially designated a “vulnerable species” under the Quebec Act in 2001, whereas it was formerly considered a common species. At the same time, the Act respecting the conservation and development of wildlife prohibits the capture, sale or keeping in captivity of individuals of a designated species, and section 26 of that Act provides that “[n]o person may disturb, destroy or damage a beaver dam or the eggs, nest or den of an animal”.
[17] In the province of Ontario, sections 9 and 10 of the Ontario Act contain prohibitions similar to the ones in the federal Act, while sections 11 et seq. of the Ontario Act deal with recovery strategies and management plans for special concern species. However, the practical problem—and it is a major one in this case—is that the Ontario Act does not apply directly to the Western Chorus Frog, which means that the portion of the species’ critical habitat in Ontario has no protection outside federal lands. However, the Northern Cricket Frog (Acris crepitans), a different species than the Western Chorus Frog (Pseudacris triseriata), has been listed in Schedule 1 to the Ontario Act as a “threatened species”.
[18] This will be discussed below when considering the facts, but the applicants would like the Governor in Council to make an emergency order to protect the Western Chorus Frog in the City of La Prairie, Quebec. In this regard, when a wildlife species on the federal List faces “imminent threats” to its survival or recovery, the Government of Canada may, on its own initiative, make an order [emergency order] to protect the species. Section 80 of the federal Act provides:
80. (1) The Governor in Council may, on the recommendation of the competent minister, make an emergency order to provide for the protection of a listed wildlife species.
80. (1) Sur recommandation du ministre compétent, le gouverneur en conseil peut prendre un décret d’urgence visant la protection d’une espèce sauvage inscrite.
(2) The competent minister must make the recommendation if he or she is of the opinion that the species faces imminent threats to its survival or recovery.
(2) Le ministre compétent est tenu de faire la recommandation s’il estime que l’espèce est exposée à des menaces imminentes pour sa survie ou son rétablissement.
(3) Before making a recommendation, the competent minister must consult every other competent minister.
(3) Avant de faire la recommandation, il consulte tout autre ministre compétent.
(4) The emergency order may
(a) in the case of an aquatic species,
(4) Le décret peut :
a) dans le cas d’une espèce aquatique :
(i) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and
(i) désigner l’habitat qui est nécessaire à la survie ou au rétablissement de l’espèce dans l’aire visée par le décret,
(ii) include provisions requiring the doing of things that protect the species and that habitat and provisions prohibiting activities that may adversely affect the species and that habitat;
(ii) imposer des mesures de protection de l’espèce et de cet habitat, et comporter des dispositions interdisant les activités susceptibles de leur nuire;
(b) in the case of a species that is a species of migratory birds protected by the Migratory Birds Convention Act, 1994,
b) dans le cas d’une espèce d’oiseau migrateur protégée par la Loi de 1994 sur la convention concernant les oiseaux migrateurs se trouvant :
(i) on federal land or in the exclusive economic zone of Canada,
(i) sur le territoire domanial ou dans la zone économique exclusive du Canada :
(A) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and
(A) désigner l’habitat qui est nécessaire à la survie ou au rétablissement de l’espèce dans l’aire visée par le décret,
(B) include provisions requiring the doing of things that protect the species and that habitat and provisions prohibiting activities that may adversely affect the species and that habitat, and
(B) imposer des mesures de protection de l’espèce et de cet habitat, et comporter des dispositions interdisant les activités susceptibles de leur nuire,
(ii) on land other than land referred to in subparagraph (i),
(ii) ailleurs que sur le territoire visé au sous-alinéa (i) :
(A) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and
(A) désigner l’habitat qui est nécessaire à la survie ou au rétablissement de l’espèce dans l’aire visée par le décret,
(B) include provisions requiring the doing of things that protect the species and provisions prohibiting activities that may adversely affect the species and that habitat; and
(B) imposer des mesures de protection de l’espèce, et comporter des dispositions interdisant les activités susceptibles de nuire à l’espèce et à cet habitat;
(c) with respect to any other species,
c) dans le cas de toute autre espèce se trouvant :
(i) on federal land, in the exclusive economic zone of Canada or on the continental shelf of Canada,
(i) sur le territoire domanial, dans la zone économique exclusive ou sur le plateau continental du Canada :
(A) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and
(A) désigner l’habitat qui est nécessaire à la survie ou au rétablissement de l’espèce dans l’aire visée par le décret,
(B) include provisions requiring the doing of things that protect the species and that habitat and provisions prohibiting activities that may adversely affect the species and that habitat, and
(B) imposer des mesures de protection de l’espèce et de cet habitat, et comporter des dispositions interdisant les activités susceptibles de leur nuire,
(ii) on land other than land referred to in subparagraph (i),
(ii) ailleurs que sur le territoire visé au sous-alinéa (i) :
(A) identify habitat that is necessary for the survival or recovery of the species in the area to which the emergency order relates, and
(A) désigner l’habitat qui est nécessaire à la survie ou au rétablissement de l’espèce dans l’aire visée par le décret,
(B) include provisions prohibiting activities that may adversely affect the species and that habitat.
(B) comporter des dispositions interdisant les activités susceptibles de nuire à l’espèce et à cet habitat.
(5) An emergency order is exempt from the application of section 3 of the Statutory Instruments Act.
(5) Les décrets d’urgence sont soustraits à l’application de l’article 3 de la Loi sur les textes réglementaires.
[Emphasis added]
[soulignements ajoutés]
[19] In Adam v Canada (Environment), 2011 FC 962 at paras 38 and 39 [Adam], Chief Justice Crampton identified a number of general principles pertaining to the interpretation of section 80 of the federal Act:
With respect to the specific language in subsection 80(2), the Applicants requested the Court to endorse the following propositions:
i. Subsection 80(2) imposes a mandatory duty;
ii. subsection 80(2) is triggered by threats to recovery or survival, or both;
iii. a key purpose of section 80 is to protect habitat while awaiting a recovery strategy;
iv. subsection 80(2) requires an objective inquiry based on the best available scientific information;
v. inaction is not permitted due to a lack of full scientific certainty;
vi. section 80 orders can be made for only part of the range of the species;
vii. imminent threats need not be guaranteed to materialize;
viii. the impact of threats must be considered over a biologically appropriate timescale; and
ix. timely decision-making is required.
Generally speaking, these propositions are supported either by the plain meaning of the language in the statute, including the preamble thereto, or the legislative history of the SARA (see, for example, House of Commons Debates, 37th Parl, 1st Sess, No 149 (26 February 2002) at 1150 (Hon Karen Redman); Standing Committee on Environment and Sustainable Development, Minutes/Evidence , March 22, 2001, at 09:35–09:40). That said, in my view, the following is equally clear:
i. The mandatory duty contemplated in subsection 80(2) is only triggered when the Minister reaches the “opinion” referred to in that provision.
ii. The language in subsection 80(1) is sufficiently broad to permit the Governor in Council to make an emergency order on recommendation of the competent minister in situations other than those contemplated by subsection 80(2), however, the competent minister would not have any statutory duty to make a recommendation in such other situations.
iii. In reaching an opinion under subsection 80(2), the Minister is not confined to considering the best available scientific information—for example, the Minister may also consider legal advice with respect to the meaning of the language in subsection 80(2).
iv. Keeping in mind the “emergency” nature of the power contemplated in section 80, it may nevertheless be legitimate for the Minister to take a short period of time, following a request such as was made by the Applicants to: (a) obtain information necessary to make an informed opinion under subsection 80(2); or (b) obtain receipt of scientific or other information that is in the process of being prepared.
v. The fact that an Order may be made (under paragraph 80(4)(c)) for only part of the range of a listed species, and the fact that the term “wildlife species” is defined in subsection 2(1) to include a “subspecies, variety or geographically or genetically distinct population”, do not imply that an Order must always be made whenever the listed species faces threats to its survival or recovery in only a part of its habitat. The Minister’s decision will properly depend on the nature of the scientific information, legal advice and other information that he receives and that is relevant to the determination to be made under subsection 80(2), including with respect to the biologically appropriate timescale within which to assess a particular threat.
vi. Conversely, I agree with the Applicants’ submission that there is nothing in the plain language of subsection 80(2) which limits the mandatory duty imposed on the Minister to situations in which a species faces imminent threats to its survival or recovery on a national basis.
vii. The less likely the threats are, the less weight that they may merit in the Minister’s assessment of the imminency of the threats.
[Emphasis in original]
[20] It is clear from the case law that section 80 of the federal Act must be given a liberal interpretation. The primary objective of that provision is to protect the critical habitat of a listed species while awaiting a recovery strategy. An emergency order will therefore contain protective measures that would normally be found in an action plan (federal, provincial or territorial) in the absence of an urgent need for action. In addition to designating the habitat required for the survival or recovery of a species, an emergency order may include provisions prohibiting activities that may adversely affect the species or that habitat (subparagraphs 80(4)(c)(i) and (ii) of the federal Act). Section 80 must therefore be read in conjunction with paragraph 97(1)(b) and subsection 97(2), which provide that contravention of any prescribed provision of a regulation or an emergency order constitutes an offence under the federal Act.
[21] An emergency order may apply to any critical habitat as well as to only a part thereof. It is not limited to federal lands. Moreover, each group of species is different and its protection requires appropriately tailored measures. The specific nature of the threat needs to be taken into account. The environment is also important. The determination contemplated at subsection 80(2) of the federal Act entails a careful review of all of the relevant circumstances, including severity and frequency, as well as any other relevant factors. For example, endangered species living in urban or agricultural areas are at risk of disappearing more quickly than species found only in remote and wild areas. That said, section 80 does not provide a precise definition of what is meant by “imminent threat”. However, in 2009 the Department of the Environment published on its site a draft document entitled “Species at Risk Act Policies: Protection” [the Draft Policy]. It indicates that the minister will consider recommending an emergency order in cases where protection under other provisions of the federal Act will not be put in place in a sufficiently timely manner to ensure the survival or recovery of a species.
[22] The Draft Policy further provides that, to determine whether or not there is an imminent threat to the survival or recovery of a species, the competent minister will consider whether
• A serious, sudden decline in the species’ population and/or habitat that jeopardizes the survival or recovery of the species is in progress and is anticipated to continue unless immediate protective actions are taken; or
• There is a strong indication of impending danger or harm to the species or its habitat, with inadequate or no mitigation measures in place to address the threat, such that the survival or recovery of the species is at risk; or
• One or more gaps have been identified in the existing suite of protection measures for the species that will jeopardize its survival or recovery, and it is not possible to achieve protection by other means in a timely fashion.
[23] Lastly, it is important not to confuse the “survival” of a species with its “recovery”, as they are two separate concepts. The concept of “recovery” goes well beyond that of the “survival” of a species. Although there is no statutory definition of the term “recovery”, Environment Canada adopted a definition in the amended Recovery Strategy for the Roseate Tern (Sterna dougallii), which indicates that “recovery is the process by which the decline of an endangered, threatened, or extirpated species is arrested or reversed and threats are removed or reduced to improve the likelihood of the species’ persistence in the wild”. Under that definition, the recovery of a species therefore includes a halt to or reversal of the decline of its population.
[24] Let us now consider the factual context that led to the Minister of the Environment’s refusal to recommend the making of an emergency order to protect the Western Chorus Frog.
II FACTUAL CONTEXT [25] The Western Chorus Frog is a small amphibian (a category that includes frogs, toads and bullfrogs) approximately 2.5 centimetres in length that lives and breeds in wetlands. Because it is a species that does not move around much, its home range lies within a small radius (approximately 250 metres) of its breeding habitat. The wetland (pool of water, swamp or flooded woodland clearing) initially serves as a breeding habitat and must be close to open land (field, clearing or woodland). The breeding season takes place during the spring. The majority of adults generally breed only once, and in most cases their life span is no more than one year, although it sometimes reaches two or three years.
[26] The Western Chorus Frog’s range extends from south-western to north-eastern North America. Approximately nine percent of the Western Chorus Frog’s global range is in Canada, where it occupies the lowlands of southern Ontario and Quebec. Suburban sprawl and changes in farming practices are contributing to the ongoing destruction of Western Chorus Frog habitats and are thereby threatening the species’ survival in Canada and elsewhere in the world. Populations and metapopulations (composed of separate population groups that interact to some degree) found along the Great Lakes/St. Lawrence and Canadian Shield are particularly exposed to the human threat, which makes them highly vulnerable.
[27] In Quebec, the Western Chorus Frog was historically present in the south of the province, from the Ottawa Valley to the foothills of the Appalachians and west of the Richelieu River. Today it is thought to occupy only 10% of this historical range. In Montérégie, the species has been reduced to just over 800 highly fragmented sites over a narrow 20-kilometre strip between the municipalities of Beauharnois to the south and Contrecœur to the north. Its presence has also been confirmed in just over 220 sites in the Outaouais region on a strip approximately 10 kilometres wide that extends over a distance of approximately 100 kilometres from east to west along the Ottawa River between the city of Gatineau and Île-du-Grand-Calumet. In 2010, scientists estimated that the species occupied at least 102 square kilometres of habitat: 60 square kilometres in Montérégie and 42 square kilometres in the Outaouais. It is estimated that the Western Chorus Frog has already lost close to 90% of its historic range in Montérégie, and it can now be found only on Île Perrot and on Montréal’s South Shore between Saint‑Stanislas-de-Kostka and Varennes, along a small strip of land approximately 20 kilometres wide. Within this area only nine metapopulations and seven small isolated populations survive, occupying a total area of approximately 50 square kilometres.
[28] In Ontario, the Western Chorus Frog is distributed over a much larger area, from the United States border up to Georgian Bay, to the south of Algonquin Park, in the Frontenac Axis, and along the Ottawa Valley up to Eaganville. No systematic survey specific to the species and its habitat has been carried out in that province. Therefore, no estimate of the number of sites occupied is available. However, there are studies that show a decline in the number of sites at which the species was historically present in eastern Ontario (-30% near Ottawa; -95% near Cornwall). These two studies were carried out in a peri-urban environment and represent good examples of the trend whereby habitat is lost to housing development in this type of context. However, they do not take into account the fact that some adjacent breeding environments have been colonized since then.
[29] Since March 17, 2010, the Great Lakes/St. Lawrence–Canadian Shield population of the Western Chorus Frog (Pseudacris triseriata) has been listed on the federal List as a “threatened species”: Order Amending Schedule 1 to the Species at Risk Act, SOR/2010-32 [Designation Order]. It was placed on the list following an assessment of the species by COSEWIC. The summary of the regulatory impact analysis that was published in the Canada Gazette Part II, SOR/2010-32 [the impact analysis], indicates that, in addition to direct economic benefits, the protection of species at risk can provide many benefits to Canadians, such as the protection of essential ecosystems, while the unique features and the evolving history of numerous species at risk, such as the Western Chorus Frog, arouse special interest on the part of the scientific community.
[30] Although a proposed recovery strategy for the Western Chorus Frog targeted to the Great Lakes/St. Lawrence–Canadian Shield population [target population] was published in 2014 in the Species at Risk Public Registry [federal Public Registry] (http://www.registrelep-sararegistry.gc.ca), no definitive version has yet been published in the federal Public Registry. In fact, according to the proposed recovery strategy for the species, urbanization and intensification of agriculture are two serious threats that raise strong concerns about the recovery of the species (Quebec and Ontario). From a biological point of view, these are two real threats that occur on an ongoing and frequent basis. The severity of these two threats is high, while the available evidence establishes a strong causal connection between the human threats identified and the viability of the target population.
[31] That said, the current proposed recovery plan does not contain any timelines or a general overview of the recovery measures contemplated by Environment Canada, the Parks Canada Agency and other jurisdictions and/or organizations participating in conservation of the species and protection of the critical habitat of the target population. It goes without saying that the implementation of recovery measures is subject to the appropriations, priorities and budgetary constraints of the participating jurisdictions and organizations, with the result that the critical habitat—and any part thereof—of this threatened species is not currently receiving any specific protection outside of federal lands. It is nonetheless anticipated that one or more action plans will be posted in the federal Public Registry before the end of 2019.
[32] The foregoing is a general factual overview. I now come to the specific facts on which this case is based. On May 15, 2013, the applicant Nature Québec served a letter on the then Environment Minister, the Honourable Peter Kent, asking him to recommend the making of an emergency order under section 80 of the federal Act and invoking an “imminent threat” to what may have remained of the Western Chorus Frog metapopulation in La Prairie, namely that of the “Bois de la Commune”, as a result of the deforestation and alteration of the wetlands surrounding the completion of a housing project called “Domaine de la nature”.
[33] Nature Québec indicates that this metapopulation has already undergone losses of more than 50% since the early 1990s and that the species’ recovery is compromised. Nature Québec alleges that it recently obtained a copy of the minutes (dated February 20, 2013, final version April 2, 2013) of a meeting of the species recovery team in Quebec, composed of experts including an Environment Canada representative. It is expressly acknowledged that the current protection and compensation measures planned for what remains of the Bois de la Commune metapopulation do not offer the necessary safeguards to ensure the survival of the species and jeopardize its recovery. Protection of the Bois de la Commune metapopulation had already been identified as a critical habitat in the provincial recovery plan.
[34] Nature Québec therefore submitted a formal request to the Minister of the Environment asking that he exercise his power to make a recommendation under section 80 of the federal Act and to [translation] ”quickly prepare an order to be adopted on an emergency basis by the Governor in Council and to provide for designation of the habitat necessary to the survival or recovery of the species in the area targeted by the order, i.e. La Prairie, and to include in this order provisions prohibiting activities that may adversely affect the species and its habitat” [emphasis added]. No immediate action was taken by the Minister of the Environment, who was slow to reply to the letter of May 15, 2013.
[35] On October 16, 2013, Nature Québec’s counsel sent to the Honourable Peter Kent’s successor, the Honourable Leona Aglukkaq [the Minister of the Environment], a formal demand that reiterated the arguments made in their previous letter. On November 14, 2013, the Director General of the Canadian Wildlife Service at Environment Canada responded, indicating that the Department was seeking additional information from the other jurisdictions on the situation of the Western Chorus Frog and on the measures taken to ensure the conservation of this species, in order to ensure that the Minister would be able to make a fully informed decision.