Canada (Fisheries and Oceans) v. David Suzuki Foundation

Canada (Fisheries and Oceans) v. David Suzuki Foundation
Court (s) Database
Federal Court of Appeal Decisions
Date
2012-02-09
Neutral citation
2012 FCA 40
File numbers
A-2-11
Notes
Reported Decision
Decision Content
Federal Court of Appeal
Cour d'appel fédérale
Date: 20120209
Docket: A-2-11
Citation: 2012 FCA 40
CORAM: NADON J.A.
SHARLOW J.A.
MAINVILLE J.A.
BETWEEN:
MINISTER OF FISHERIES AND OCEANS
Appellant
and
DAVID SUZUKI FOUNDATION, DOGWOOD INITIATIVE,
ENVIRONMENTAL DEFENCE CANADA, GEORGIA STRAIT ALLIANCE, GREENPEACE CANADA, INTERNATIONAL FUND FOR ANIMAL
WELFARE, RAINCOAST CONSERVATION SOCIETY, SIERRA CLUB
OF CANADA and WESTERN CANADA WILDERNESS COMMITTEE
Respondents
Heard at Vancouver, British Columbia, on November 30, 2011.
Judgment delivered at Ottawa, Ontario, on February 9, 2012.
REASONS FOR JUDGMENT BY: MAINVILLE J.A.
CONCURRED IN BY: NADON J.A.
SHARLOW J.A.
Federal Court of Appeal
Cour d'appel fédérale
Date: 20120209
Docket: A-2-11
Citation: 2012 FCA 40
CORAM: NADON J.A.
SHARLOW J.A.
MAINVILLE J.A.
BETWEEN:
MINISTER OF FISHERIES AND OCEANS
Appellant
and
DAVID SUZUKI FOUNDATION, DOGWOOD INITIATIVE,
ENVIRONMENTAL DEFENCE CANADA, GEORGIA STRAIT ALLIANCE, GREENPEACE CANADA, INTERNATIONAL FUND FOR ANIMAL
WELFARE, RAINCOAST CONSERVATION SOCIETY, SIERRA CLUB
OF CANADA and WESTERN CANADA WILDERNESS COMMITTEE
Respondents
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1] The Minister of Fisheries and Oceans (“Minister”) is appealing a judgment of the Federal Court cited as 2010 FC 1233 (“Reasons”) in which Russell J. (“Federal Court judge”) declared that ministerial discretion does not “legally protect” critical habitat under section 58 of the Species at Risk Act, S.C. 2002, c. 29 (“SARA”) and which further declared that it was unlawful for the Minister to have cited discretionary provisions of the Fisheries Act, R.S.C. 1985, c. F-14 in a protection statement concerning the critical habitat of the Northeast Pacific Northern and Southern populations of killer whales.
[2] Subsection 58(5) of the SARA provides that the Minister must make an order under subsections 58(1) and (4) protecting the critical habitat of listed endangered or threatened aquatic species if such critical habitat “is not legally protected by provisions in, or measures under, this or any other Act of Parliament”. The Minister had determined that the Fisheries Act legally protected some aspects of the critical habitat of killer whales and could thus be resorted to as a substitute to a protection order under the SARA.
[3] The Federal Court judge ruled that the Minister may avoid issuing a critical habitat protection order under the SARA only where the legal protection offered that habitat under another Act of Parliament is the same as that provided under a protection order. He further ruled that the measures available to the Minister under the Fisheries Act could be diluted under the sweeping and largely unfettered discretions granted to the Minister under that statute. Consequently, he concluded that the Fisheries Act could not be resorted to as a substitute to a critical habitat protection order under the SARA.
Overview of conclusions
[4] The Minister is appealing to this Court on two main grounds.
[5] The first ground of appeal concerns the standard of review. The Minister submits that Parliament made him responsible for the administration of the regulatory schemes of the SARA and of the Fisheries Act; hence, his interpretation of their provisions is entitled to deference. The Minister bases that submission on a judgment rendered fairly recently by the Supreme Court of Canada: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (“Dunsmuir”). That judgment emphasized the deference owed to an administrative tribunal when it interprets a provision of its enabling (or “home”) statute or statutes closely related to its functions.
[6] In my view, no deference is owed to the Minister as to the interpretation of the relevant provisions of the SARA or of the Fisheries Act. The Minister’s interpretation of the Supreme Court’s most recent pronouncements is erroneous as it fails to consider the context in which they were developed and the reasons which may warrant deference to an administrative tribunal when it interprets its enabling statute. The reasonableness standard of review does not apply to the interpretation of a statute by a minister responsible for its implementation unless Parliament has provided otherwise. I thus conclude – as did the Federal Court judge in this case – that where an application for judicial review of a decision as to the implementation of the SARA is based on an allegation that the Minister has misinterpreted a provision of the SARA – or of the Fisheries Act as it relates to the SARA – the Minister’s interpretation must be reviewed on a standard of correctness. The courts owe no deference to the Minister in that respect.
[7] The second ground of appeal concerns the interpretation of the SARA. The Minister does not dispute that the protection of critical habitat under the SARA is compulsory. However, the Minister submits that Parliament intended that there should be some flexibility as to the modalities of that compulsory protection. The Minister states that he does not wish to retain discretion under the Fisheries Act to undermine that protection or to provide protection which is inferior to that afforded under a SARA protection order. Rather, the Minister submits that certain measures under the Fisheries Act do protect critical habitat against destruction, and that he should therefore be able to resort to such measures as alternatives to a SARA protection order even though they might be subject to his discretion.
[8] I do not accept the Minister’s interpretation of the SARA on this point. When Parliament adopted section 58 of the SARA, its intent was to provide for compulsory and non-discretionary legal protection from destruction for the identified critical habitat of listed endangered or threatened aquatic species. This protection can be achieved through a provision or measure under an Act of Parliament which legally protects from destruction that habitat and which is not subject to dilution through discretionary ministerial action. In the absence of such a legally enforceable provision or measure, the Minister must make a protection order under subsections 58(1) and (4) of the SARA to ensure the protection of that habitat.
[9] While the Minister submits that, by retaining his discretion under the Fisheries Act, he does not intend to undermine the protection provided under the SARA or to provide protection that is inferior to that available under a SARA protection order, he fails to explain how his discretion under the Fisheries Act would be legally fettered. Parliament adopted section 58 of the SARA precisely to avoid the destruction of the identified critical habitat of listed endangered and threatened aquatic species though any means. If the Minister’s position were accepted, the compulsory and non-discretionary protection scheme set out by Parliament under the SARA would be transformed into a protection scheme largely subject to ministerial discretion. Such was not Parliament’s intent in adopting the SARA.
[10] However – and contrary to the conclusions of the Federal Court judge in this case – there may be circumstances in which the Minister may rely on section 36 of the Fisheries Act (which I take to include regulations made under that section) in a protection statement made under paragraph 58(5)(b) of the SARA. Section 36 of the Fisheries Act prohibits the deposit of deleterious substances in water frequented by fish, unless such deposit is authorized under regulations adopted by the Governor in Council. In a given case, the combined operation of section 36 of the Fisheries Act and of its regulations may afford a particular endangered or threatened species the legal protection mandated by section 58 of the SARA. In such a case, it may be appropriate for the Minister to rely on those provisions for the purposes of paragraph 58(5)(b) of the SARA.
[11] However, in this case, the record contains no evidence as to the effect, if any, of section 36 and its regulations on the killer whale critical habitat at issue. Therefore, there was no basis in these proceedings upon which the Federal Court judge could have determined whether the Minister’s reliance on section 36 could have been justified in light of the provisions of section 58 of the SARA.
Overview of the provisions of the Species at Risk Act relevant to this appeal
[12] The SARA was assented to in 2002 as the first comprehensive federal legislation seeking (a) to prevent wildlife species from being extirpated or becoming extinct and (b) to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity. That legislation was adopted partly to meet Canada’s obligations under the United Nations Convention on the Conservation of Biological Diversity. Some of the relevant provisions of the SARA are reproduced in a schedule to these reasons.
[13] The SARA identifies different categories of species at risk and distinguishes between extirpated species, endangered species, threatened species and species of special concern. For the purposes of this appeal, we need only concern ourselves with the scheme pertaining to listed endangered and threatened aquatic species.
[14] An endangered species is a wildlife species that is facing imminent extirpation or extinction, while a threatened species is a species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction. An aquatic species includes fish, shellfish, crustaceans, marine animals, and marine plants. It is not disputed that killer whales are an aquatic species for the purposes of the SARA: subsection 2(1) of SARA concerning the definitions of “aquatic species”, “endangered species” and “threatened species”; section 2 of the Fisheries Act concerning the definition of “fish”.
[15] While the Minister of the Environment is responsible for the administration of the SARA, the appellant Minister is the competent minister under that statute with respect to aquatic species, including with regard to the preparation of recovery strategies, action plans and the protection of critical habitat for such species which are endangered or threatened: subsection 2(1) “competent minister” and “Minister”, subsections 8(1) and 37(1), section 47, and subsection 58(5) of the SARA.
[16] The SARA sets out a listing process to identify species at risk. An initial list (distinguishing between extirpated, endangered, and threatened species and species of special concern) is included in Schedule 1 of the SARA. Wildlife species may be added to, or removed from, this list – or reclassified within the list – by the Governor in Council taking into account the recommendations of an expert committee designated the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”) and after consultation with relevant stakeholders: section 27 of the SARA.
[17] The listing of an aquatic wildlife species as endangered or threatened extends important legal protections to that species. To kill, harm, harass, capture or take an individual of a listed endangered or threatened aquatic wildlife species is prohibited by subsection 32(1) of the SARA. Possessing, collecting, buying, selling or trading an individual of such a species – or any part or derivative thereof – is prohibited by subsections 32(2) and (3). Furthermore, section 33 prohibits any person from damaging or destroying the residence or dwelling place (such as a den, nest or other similar area or place) of one or more individuals of such a species. Those who fail to respect these prohibitions are liable to large fines and to imprisonment: sections 97 and 98.
[18] The listing of an aquatic species in Schedule 1 of the SARA as endangered or threatened also requires the Minister to prepare a recovery strategy for that species within specified timelines: subsections 37(1) and 42(2) of the SARA. Such a recovery strategy must be prepared in cooperation with various stakeholders: section 39. If the Minister determines that the recovery of the endangered or threatened aquatic species is feasible, the recovery strategy must address the threats to the survival of the species identified by the COSEWIC, including any loss of habitat, and must include, inter alia, an identification of the species’ critical habitat to the extent possible, based on the best available information, including information provided by COSEWIC, and examples of activities that are likely to result in its destruction: paragraph 41(1)(c).
[19] The proposed recovery strategy is then subject to public consultations. The Minister must consider any comments received, and make the changes he considers appropriate. Finally, the Minister must finalize the recovery strategy by including a copy in the public registry established for the purposes of the SARA: section 43. The Minister must also publicly report every five years on the implementation of the recovery strategy and the progress towards meeting its objectives: section 46.
[20] The Minister must prepare one or more action plans based on the recovery strategy, and such plans must include, inter alia: an identification of the aquatic species critical habitat and examples of activities which are likely to result in its destruction; a statement of measures which are proposed to be taken to protect the species critical habitat; an identification of any portions of the species critical habitat that have not been protected; and a statement of the measures that are to be taken to implement the recovery strategy : section 47 and paragraphs 49(1)(a)(b)(c) and (d).
[21] A final recovery strategy for a listed endangered or threatened aquatic species has important legal consequences under the SARA since the entire critical habitat identified in the recovery strategy must be protected: section 57 and subsections 58(1) to (5) of the SARA. This protection is achieved either,
(a) through provisions in or measures under the SARA or any other Act of Parliament; in such case, the Minister must identify how the critical habitat is legally protected in a protection statement made pursuant to paragraph 58(5)(b); or
(b) through a protection order made by the Minister under subsections 58(1) and (4) in respect of the critical habitat or portion of the critical habitat specified in the order.
[22] Since many endangered and threatened species are not aquatic species or migratory bird species falling under primary federal jurisdiction, the SARA provides that federal action to prohibit the destruction of the critical habitat of most species must be exercised in close collaboration with provincial and territorial authorities. Consequently, different provisions of the SARA govern the protection of the critical habitat of these other species on lands which are not federal lands: sections 60 and 61 of the SARA. It is not however necessary to examine these other provisions of the SARA for the purposes of this appeal, and nothing in these reasons should be understood as pertaining to them.
[23] The Minister may also use his permitting and licensing authorities under the SARA or under another Act of Parliament to protect listed wildlife species, their critical habitat or their residences or dwelling places: sections 73, 74 and 75 of the SARA.
[24] The prohibitions under the SARA preventing the harvesting and trading in endangered or threatened aquatic species, the destruction of their dwelling places and the destruction of their critical habitat do not apply to activities related to public safety, health or national security that are authorized by, or under, an Act of Parliament: subsections 83(1) to (4) of the SARA.
Background to these proceedings
[25] Killer whales are the largest members of the dolphin family. They are long-lived animals with no natural predators. They are found in all three of Canada’s oceans, as well as occasionally in Hudson Bay and the Gulf of St. Lawrence. In British Columbia, they have been recorded in almost all salt-water areas. Three distinct forms of killer whale inhabit Canadian Pacific waters: transient, offshore and resident. These forms are sympatric but socially isolated and differ in their dietary preferences, genetics, morphology and behaviour.
[26] Resident killer whales are the best understood. Their social organization is highly structured and their fundamental unit is matrilineal, comprising all surviving members of a female lineage. A typical matrilineal unit comprises an adult female, her offspring, and the offspring of her daughters. Both sexes remain within their natal matrilineal unit.
[27] There are two communities of resident killer whales in British Columbia: the northern resident population and the southern resident population. These resident killer whale populations are considered at risk because of their small population size, low reproductive rate, and the existence of a variety of man-made threats that have the potential to prevent recovery or to cause further declines. Principal among these threats are environmental contamination, reductions in the availability and quantity of prey, and both physical and acoustic disturbance. In 2003, the southern resident killer whale population counted 85 members, while the northern resident population counted 205 members.
[28] In 2001, COSEWIC designated the southern population as endangered, and the northern population as threatened. These populations were listed accordingly in Schedule 1 of the SARA when that statute was adopted by Parliament. Consequently, under subsections 37(1) and 42(2) of the SARA, the Minister was required to prepare a recovery strategy for these killer whale populations within specified timelines. For this purpose, a Resident Killer Whale Recovery Team (the “Recovery Team”) comprising independent and government experts was convened in 2004.
[29] Following extensive study and review, a final draft recovery strategy was completed in May of 2006 for submission to the Minister. The manner in which critical habitat was described in this draft led to disputes between the Recovery Team and officials from the Department of Fisheries and Oceans. These disputes delayed the posting and approval of the recovery strategy, which was only included in the public registry established under the SARA in March of 2008.
[30] Pursuant to subsection 58(5) of the SARA, the inclusion of the recovery strategy in the public registry required the Minister to ensure that the critical habitat identified in that strategy be protected within 180 days. That protection could be achieved either through a protection order made by the Minister under subsections 58(1) and (4) or through a statement by the Minister setting out how the critical habitat or portions of it, as the case may be, would be legally protected under an Act of Parliament. The Minister did not make a protection order under the SARA. Rather, he included in the public registry a statement setting out how the critical habitat of the concerned killer whale populations was legally protected (the “Killer Whales Protection Statement”).
[31] The Killer Whales Protection Statement restricted the concept of critical habitat for the purposes of the SARA to geophysical attributes. Consequently, the Killer Whales Protection Statement identified three types of human activity which could potentially destroy the geophysical attributes of the critical habitat of the concerned killer whale populations in the identified areas. It further identified various legislative provisions, including section 35 of the Fisheries Act and subsection 22(1) of the Fishery (General) Regulations, SOR/93-53 which were deemed to ensure the protection of these geophysical attributes. The pertinent paragraphs of the Killer Whales Protection Statement read as follows:
Human activity which could potentially destroy the geophysical attributes of critical habitat for these species, as identified in the Final Recovery Strategy, and the federal legislations, regulations and/or policies which would be used to provide protection against such destruction are:
-Industrial activities such as construction, drilling, pile driving, pipe-laying, and dredging, and construction of physical structures such as wharves and net pens for aquaculture
-Protected under provisions of the Fisheries Act s. 35 and the Canadian Environmental Protection Act (Part VII, Division 3). This protection is supported by processes under the Canadian Environmental Assessment Act.
-Fishing vessels using gear that drags along the bottom
-Protected through provisions of the Fisheries Act or regulations made thereunder, in particular s. 22(1) of the Fishery (General) Regulations. This protection is supported by processes under the Fisheries and Oceans Canada policy on Managing the Impacts of Fishing on Sensitive Benthic Areas.
-Use of vessel anchors which may permanently damage the seabed, or which may serve to destroy a rubbing beach
-Protected through provisions of the Fisheries Act s. 35, or of the Oceans Act s. 35 and/or s. 36. In addition, a Code of Conduct and outreach initiatives to inform and sensitise Canadians to the need to protect Resident Killer Whale habitat will continue to be developed and implemented.
[32] The difficulty in defining critical habitat in terms of geophysical attributes was that some of the most important elements of the critical habitat which had been identified in the recovery strategy were left without protection. The recovery strategy had indeed identified acoustic degradation, chemical and biological contamination and diminished prey availability as key components of the critical habitat of killer whales. Yet the Killer Whales Protection Statement did not consider these components as part of “critical habitat” for the purposes of protection under the SARA. Rather, the Killer Whales Protection Statement treated these components as “ecosystem features” to be dealt with through “legislative and policy tools”, and not under the SARA. The Killer Whales Protection Statement thus treated these components as follows:
While the Recovery Strategy identifies the critical habitat as a defined geophysical area, Fisheries and Oceans Canada (DFO) recognizes that other ecosystem features such as the availability of prey for foraging and the quality of the environment are important to the survival and recovery of Northern and Southern Resident Killer Whales. A variety of legislative and policy tools are available to manage and mitigate threats to these functions of the Resident Killer Whale critical habitat, to individuals and to populations.
-Disturbance
-Threat management and mitigation is afforded under the Marine Mammal Regulations and the Whale Watching Guidelines developed cooperatively by industry and DFO.
-Degradation of the Acoustic Environment
-Threat management and mitigation is afforded under the Marine Mammal Regulations, the Statement of Practice with Respect to the Mitigation of Seismic Sound in the Marine Environment, and protocols for military sonar use.
-Marine Environmental Quality
-Threat management and mitigation is afforded under provisions of the Fisheries Act, or regulations made thereunder, and the Canadian Environmental Protection Act or regulations made thereunder.
-Availability of Prey
-Threat management and mitigation is afforded under the Fisheries Act or regulations made thereunder, supported by the Wild Salmon Policy and use of Integrated Fisheries Management Plans.
History of the Litigation
[33] The respondents in this appeal challenged the lawfulness of the Killer Whales Protection Statement by initiating a judicial review application before the Federal Court in October of 2008, wherein they asked that Court to make various declarations, set aside the Killer Whales Protection Statement, and a refer the matter back to the Minister for a new decision under section 58 of the SARA.
[34] In their application, the respondents argued that the critical habitat of the concerned killer whale populations included not only the geophysical elements of that habitat, but also all the other components identified in the recovery strategy. They further argued that, in a protection statement, the Minister could not resort to non-binding policy, prospective legislation or on ministerial discretion.
[35] Before this judicial review application could be heard, the Minister reversed himself. Both he and the Minister of the Environment jointly issued a protection order under subsections 58(1) and (4) of the SARA, which order was registered on February 19, 2009 as the Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of Killer Whale (Orcinus orca) Order, SOR/2009-68 (the “Killer Whales Protection Order”). Maps identifying the critical habitat areas contemplated by that order are attached in a schedule to these reasons. These are the same critical habitat areas as identified in the recovery strategy.
[36] Soon after this order was published, the respondents in this appeal sought clarification as to the scope and meaning of the order. In response, the Minister (a) asserted that the Killer Whales Protection Order was an optional alternative to the Killer Whales Protection Statement; (b) further asserted that policy and discretionary tools could be resorted to; and (c) did not give assurances to confirm that the Killer Whales Protection Order protected the biological features of critical habitat from destruction: Reasons at para. 44.
[37] The respondents in this appeal were unsatisfied and consequently filed a second judicial review application before the Federal Court. This second application challenged the practice of limiting the scope of a protection order made under subsections 58(1) and (4) of the SARA to geospatial areas and geophysical elements of critical habitat.
[38] Both judicial review applications were consolidated before the Federal Court after O’Reilly J. rejected the Minister’s motion to dismiss as moot the judicial review application challenging the Killer Whales Protection Statement. O’Reilly J. was satisfied that in light of the Killer Whales Protection Order, the application for judicial review challenging the Killer Whales Protection Statement was moot. However, he was also of the view that there was a serious issue as to whether that judicial review application should nevertheless be heard in the exercise of the Federal Court’s discretion in such circumstances; a discretion which, he opined, would be better exercised by the judge hearing both applications on the merits.
The reasons and judgment of the Federal Court
[39] The Federal Court judge hearing both applications on their merits granted most of the declarations sought and provided detailed reasons in support thereof.
[40] Turning his attention to the standard of review, the Federal Court judge found that since the issues raised were essentially questions of statutory interpretation, the correctness standard applied.
[41] As to the scope of “critical habitat” under the SARA, the Federal Court judge concluded that the issue had been conclusively decided by Campbell J. of the Federal Court in Environmental Defence Canada v. Canada (Fisheries and Oceans), 2009 FC 878, 349 F.T.R. 225 (“Environmental Defence”).
[42] The issue in Environmental Defence mainly concerned the scope of the expression “critical habitat” for the purposes of inclusion in a recovery strategy under paragraphs 41(1)(c) and (c.1) of the SARA. The applicants in Environmental Defence submitted that the constituents of habitat – and by implication of critical habitat – for specified species “are an identifiable location and the attributes of that location”: Environmental Defence at para. 46. Campbell J. agreed, and ruled that for the purposes of the SARA, the word “areas” in the definition of “habitat” set out in the SARA did not just connote a location, “but a location that includes its special identifiable features”: Environmental Defence at para. 58. The order of Campbell J. in Environmental Defence was not appealed from by the Minister, who now accepts that both the location and the components of critical habitat are contemplated by the SARA.
[43] Since, in this case, the recovery strategy identified reduced availability of prey, environmental contaminants and physical and acoustic disturbance as components of the critical habitat of the concerned killer whale populations, the Federal Court judge found that the Killer Whales Protection Order had to apply to all these components: Reasons at paras. 163-164 and 337 to 339. Moreover, in light of Environmental Defence, the Minister had in fact conceded this point before the Federal Court judge: Reasons at paras. 159 and 163. By necessary implication, the Killer Whales Protection Statement was also flawed since it did not include these elements as critical habitat: Reasons at paras. 337 to 339.
[44] The Federal Court judge then went on to reject the Minister’s contention that the declarations sought in regard to the Killer Whales Protection Order were beyond the jurisdiction of the Federal Court. The Minister had indeed submitted that the Killer Whales Protection Order was not a “decision” subject to judicial review; he argued that the order was rather a “regulation” within the meaning of the Statutory Instruments Act, R.S.C., 1985, c. S-22, and that it was thus immune from judicial review. The Federal Court judge was not persuaded, ruling instead that Parliament had not shielded decisions under subsection 58(5) of the SARA from judicial review through the use of a privative clause or otherwise. In his view, the SARA was clearly a justiciable statute that imposed duties on the Minister, and whose actions under that statute were subject to review before the Federal Court: Reasons at paras 183-184.
[45] The Federal Court judge also decided to hear the application concerning the Killer Whales Protection Statement even if the Killer Whales Protection Order had made that application moot. Applying the factors established in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Federal Court judge concluded that, in view of the fundamental points of law raised by the proceedings, a quite live controversy between the parties did remain: Reasons at paras. 242 to 245. He also concluded that these points were of general importance for the interpretation and application of the SARA: Reasons at paras. 250-251.
[46] The Federal Court judge then ruled that a competent minister may not resort to another federal statute as a substitute for a protection order unless that statute provides an equal level of legal protection for critical habitat as would be engaged through a protection order: Reasons at paras. 257 and 272. The Federal Court judge made that ruling on the basis of a purposive reading of the pertinent provisions of the SARA; he concluded that Parliament had sought to limit ministerial discretion where the protection of critical habitat of endangered and threatened species was at issue: Reasons at paras. 277 to 280.
[47] The Federal Court judge then went on to conclude that the Fisheries Act, and the regulations adopted under that statute, could not be used as a substitute for a protection order. His conclusion was based on the highly discretionary nature of the broad powers afforded to the Minister under the scheme of the Fisheries Act, including a broad discretion to authorize the destruction of fish habitat under subsection 35(2) and to attach conditions to a fishing licence under section 22 of the Fishery (General) Regulations: Reasons paras. 320-321.
[48] The Federal Court judge also discarded section 36 of the Fisheries Act – which prohibits the deposit of a deleterious substance into waters frequented by fish – on the basis that such deposits may nevertheless be authorized through regulations adopted “at the Cabinet’s discretion”: Reasons at para. 325.
[49] The Federal Court judge then went on to make eleven declarations of law. These declarations read as follows:
1. With respect to the Protection Statement Application:
a. The Minister of Fisheries and Oceans erred in law in determining that the critical habitat of the Resident Killer Whales was already legally protected by existing laws of Canada;
b. Section 58 of SARA requires that all elements of critical habitat be legally protected by the competent ministers;
c. Outreach programs, stewardship programs, voluntary codes of conduct or practice, voluntary protocols and/or voluntary guidelines and policy do not legally protect critical habitat within the meaning of section 58 of SARA, and it was unlawful for the Minister to have cited policy documents in the Protection Statement;
d. Ministerial discretion does not legally protect critical habitat within the meaning of section 58 of SARA, and it was unlawful for the Minister to have cited discretionary provisions of the Fisheries Act in the Protection Statement;
e. Prospective laws and regulations that are not yet in force do not legally protect critical habitat within the meaning of section 58 of SARA, and it was unlawful for the Minister to have cited provisions in the Protection Statement that are not yet in force;
f. Provincial laws do not legally protect critical habitat within the meaning of section 58 of SARA, and it was unlawful for the Minister to have cited provincial laws in the Protection Statement.
2. With respect to the Protection Order Application:
a. The Ministers acted unlawfully in limiting the application and scope of the Protection Order made under section 58(4) of SARA;
b. The Ministers have a duty under section 58 to provide legal protection against destruction for all components of the Resident Killer Whales’ critical habitat;
c. The Ministers acted unlawfully when they limited the application and scope of the destruction prohibition in section 58(1) of SARA to certain components of critical habitat but not others;
d. It was an error of law for the Ministers to limit the application and scope of the Protection Order to provide legal protection for geophysical parts of critical habitat only;
e. It was unlawful for the Ministers to exclude the ecosystem features of Resident Killer Whales’ critical habitat, including availability of prey and acoustic and environmental factors from the scope of the Protection Order.
The issues in this appeal
[50] Though the Minister of the Environment was also a respondent before the Federal Court, only the Minister of Fisheries and Oceans has appealed to this Court. Moreover, that Minister’s appeal only concerns one of the declarations made by the Federal Court judge, namely declaration 1(d) providing that ministerial discretion does not legally protect critical habitat within the meaning of section 58 of the SARA, and that it was consequently unlawful for the Minister to have cited discretionary provisions of the Fisheries Act in the Killer Whales Protection Statement.
[51] The Minister raises the standard of review as a first ground of appeal. He submits that Parliament entrusted him with the responsibility to manage aquatic species under both the SARA and the Fisheries Act, and that, consequently, he is entitled to deference as to the interpretation of both these statutes.
[52] As a second ground of appeal, the Minister submits that he lawfully invoked the provisions of the Fisheries Act in the Killer Whales Protection Statement, and that he may resort to such provisions in any protection statement made under subsection 58(5) of the SARA.
[53] This appeal consequently raises the following questions:
a. What is the standard of review?
b. Did the Minister err by relying on the provisions of the Fisheries Act and of its regulations in making the Killer Whales Protection Statement?
[54] In addition, as a preliminary matter, I must consider whether this appeal should be dismissed on the basis that the issues raised by the Minister are moot.
Preliminary issue: Should this appeal be dismissed on the ground that the issues raised by the Minister are moot?
[55] The Minister’s appeal concerns the Killer Whales Protection Statement, which statement was replaced by the Killer Whales Protection Order. As both O’Reilly J. and the Federal Court judge concluded in this case, the issues which are raised by these proceedings and which concern the Killer Whales Protection Statement are clearly moot. Hence, should this Court entertain those issues?
[56] The Minister and the respondents are not pursuing this argument before this Court, but the fact that they are not raising it does not mean that this Court can simply ignore the matter. Reluctant as this Court is to decide a matter not fully argued before it, determining if the issues are moot and if so, whether they should nevertheless be decided, is a prerequisite to the disposition of this appeal.
[57] The choice of the appropriate test to apply in deciding whether a matter is moot is a question of law. The decision of whether to hear a moot proceeding is discretionary: Aktiebolaget Hassle v. Apotex Inc., 2008 FCA 88 at para. 11. The identification of the factors which must be considered in exercising that discretion is also a question of law: Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, 2003 SCC 62 at para. 18.
[58] It cannot be disputed that the issues raised are moot. It is also clear from the Federal Court judge’s reasons at paras. 236 to 252 that he identified the appropriate factors to consider in exercising his discretion to nevertheless hear these issues. In an appeal from such a judgment, should this Court review the exercise of the Federal Court judge’s discretion on a standard of reasonableness or should this Court rather exercise anew judicial discretion and decide itself whether or not to hear the moot issues in appeal? In past appeals, this Court seems to have preferred to exercise anew the discretion: see Baron v. Canada (Public Safety and Emergency Preparedness, 2009 FCA 81 at paras. 26 to 46.
[59] In Borowski v. Canada (Attorney General), above at pages 358-363, and in Doucet-Boudreau v. Nova Scotia (Minister of Education), above at paras. 18 to 22, the Supreme Court of Canada has outlined the following criteria for courts to consider in exercising discretion to hear a moot case:
a. the presence of an adversarial context;
b. the concern for judicial economy; and
c. the need for the Court to be sensitive to its role as the adjudicative branch in our political framework.
[60] Applying these factors, I conclude that the Federal Court judge reasonably exercised his discretion to hear the issues relating to the Killer Whales Protection Statement. I also conclude that this Court should exercise its discretion to entertain those issues even though they are moot.
[61] These issues have been fully argued before both the Federal Court and this Court; and a very live controversy exists between the parties which will persist until they are finally decided.
[62] Judicial economy will be well served if this Court addresses the issues raised. They have been fully canvassed in these proceedings and they will likely arise in the future in the context of other protection statements under the SARA. It is thus appropriate to settle these issues now rather than to await another case which will require additional efforts and expenditures to pursue.
[63] The issues raised are of public importance, and their resolution is in the public interest. This case is the first to be heard by this Court concerning the scope of a protection statement under the SARA. Many other protection statements are being prepared and may have been issued for other endangered or threatened species. Consequently, bot