Environmental Defence Canada v. Canada (Fisheries and Oceans)

Environmental Defence Canada v. Canada (Fisheries and Oceans)
Court (s) Database
Federal Court Decisions
Date
2009-09-09
Neutral citation
2009 FC 878
File numbers
T-1529-07
Notes
Digest
Decision Content
Date: 20090909
Docket: T-1529-07
Citation: 2009 FC 878
Ottawa, Ontario, September 9, 2009
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ENVIRONMENTAL DEFENCE CANADA
GEORGIA STRAIT ALLIANCE
WESTERN CANADA WILDERNESS COMMITTEE
and DAVID SUZUKI FOUNDATION
Applicants
and
MINISTER OF FISHERIES AND OCEANS
Respondent
REASONS FOR ORDER AND ORDER
[1] By these reasons, the Nooksack Dace, a small minnow whose habitat is four fresh water streams in the Lower Mainland of British Columbia, has the distinction of being the first endangered species in Canada to benefit by a comprehensive interpretation by this Court of key elements of its protective legislation: the Species at Risk Act, 2002, c. 29 (SARA).
A decision of the Minister of Fisheries and Oceans (Minister) pursuant to SARA has prompted the Applicants to bring the present Application as a “test case” respecting the Minister’s interpretation of SARA as displayed in the decision under review. The Applicants argue that the Minister knowingly failed to follow the mandatory requirements of s. 41(1)(c) and (c.1) of SARA with respect to the Final Recovery Strategy for the Nooksack Dace. However, during the course of the hearing, Counsel for the Applicants stressed that no allegation of bad faith is being made respecting this conduct.
[2] Nevertheless, in my opinion, the story that gave rise to the present litigation and the conduct of the litigation itself is important to be told. This is so because a review of the Minister’s decision-making under SARA applied to the Nooksack Dace provides ample proof that the bringing of the present Application was absolutely necessary. This is a story about the creation and application of policy by the Minister in clear contravention of the law, and a reluctance to be held accountable for failure to follow the law. Therefore, this is a case about the rule of law described by Justices Bastarache and LeBel at paragraph 28 of Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190:
By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.
[3] In the end result, the Applicants’ judicial review argument concerning the Minister’s failure in decision-making is limited to a question of statutory interpretation. For the reasons which follow, I find that the Minister acted contrary to the law intended by Parliament to protect the Nooksack Dace.
I. Overview of the Present Dispute
[4] The Applicants’ purpose in launching the present Application is stated in the following paragraphs of the Notice of Application:
15. The Applicants are “public interest groups” in that they are charities that work for environmental protection and have no personal, proprietary or pecuniary interest in the outcome of the Application.
16. The Applicants believe that they need to bring this Application to address federal failure to implement the SARA, which failure is further endangering Canada’s at risk species. They believe that an order requiring SARA to be complied with is in the public interest because the viability of Canada’s wildlife populations is a matter affecting all Canadians.
17. The Applicants also believe that, unfortunately, they have no choice but to litigate this matter. Each of the Applicants has a record of working to protect at-risk species and also a record of working, using non-litigious means, to ensure that the federal government, including the Respondent Minister, implements the SARA. They bring this Application only in the face of overwhelming evidence that: (a) the Canadian government is attempting to avoid its obligation to implement the SARA so as to protect Canada’s at-risk species; and, (b) non-litigious means have not proven effective in ensuring this whereas litigation, or its threat, has proven effective.
The Applicants’ detailed position in the present Application is stated in précis form in the Notice of Application; the factual statements are not in dispute:
The grounds for the application are:
The Species at Risk Act and the Nooksack Dace
1. The Species at Risk Act (SARA) received Royal Assent on December 12, 2002 and came into force in three phases. On March 24, 2003, sections 134 to 136 and 138 to 141 setting out amendments to other national wildlife legislation came into force. On June 5, 2003, sections 2 to 31, 37 to 56, 62, 65 to 76, 78 to 84, 120 to 133 and 137 came into force. On June 1, 2004, the remainder of the SARA’s sections came into force: sections 32 to 36, 57 to 61, 63, 64, 77, and 85 to 119.
2. The purpose of the SARA is:
…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 (s.6).
3. The Nooksack dace is a small (<15 cm) stream-dwelling minnow. Within Canada it is known from four lowland streams in British Columbia’s Fraser Valley. The global distribution includes approximately 20 additional streams in north-west Washington.
4. The Nooksack dace is “listed” pursuant to the SARA as an “endangered” species, meaning that it on the List of endangered Wildlife Species set out in Schedule 1 to the SARA. The dace’s status as “endangered” means that it is “a wildlife species that is facing imminent extirpation.” “Extirpated” means no longer existing in the wild in Canada, but existing elsewhere in the wild. (s.2). The Nooksack dace is extirpated from some tributaries in Canadian watersheds where it was abundant in the 1960s.
5. Listing triggers SARA’s provisions to prevent extirpation and provide for recovery of species. These include prohibitions against harm (s.32), protections for residence (s.33) and the requirement of the Minister to undertake recovery planning (ss.37-46) and recovery plan implementation (“action planning”) (ss.47-64).
6. Essential to the recovery planning process is the Minister’s preparation of “recovery strategies” which “must address the threats to survival of the species” (s.41). Recovery strategies must, inter alia:
• describe the species and its needs,
• identify the threats to its survival and threats to its habitat; and
• identify “critical habitat, to the extent possible, based on the best available information” including examples of activities likely to result in the destruction of critical habitat (s.41) (a), (b) & (c).
7. Protecting critical habitat is often necessary to the survival and recovery of a species. This is reflected in the preamble to the SARA - “habitat of species at risk is key to their conservation.” This is also recognized by the definition of critical habitat - “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” (s.2).
8. By this definition, protection of critical habitat occurs only if it is identified in a recovery strategy or action plan, which triggers a prohibition against its destruction (s.58). But, unlike recovery strategies which must be prepared according to mandatory timelines (s.42), the SARA contains no time limits for preparing action plans. Thus, failure to identify critical habitat at the recovery strategy stage risks indefinite delay in its eventual identification and protection.
The Nooksack Dace Recovery Strategy and federal intention to disregard the SARA
9. The Nooksack dace was a species listed on Schedule 1 of the SARA when the Act came into force, therefore the Recovery Strategy was due June 5th, 2006 (ss.42(2)).
10. The SARA requires a proposed recovery strategy to be placed on a SARA Public Registry where, for 60 days, the public may file written comments with the Minister (s.43(1)). 30 days after this, the Minister must include the final recovery strategy on the Public Registry (s.43(2)).
11. A draft [proposed] Nooksack Dace Recovery Strategy was posted to the Public Registry on or about September 25th, 2006. Comments were submitted on behalf of the Applicants which noted, inter alia, the failure of the Recovery Strategy to identify critical habitat notwithstanding that its location is known. On July 23, 2007, one year after it was due, the final Nooksack Dace Recovery Strategy was posted to the Public Registry.
12. The Recovery Strategy does not identify critical habitat while identifying loss of habitat as one of the main threats to the Nooksack dace’s survival, and recommending habitat protection in ensuring the species’ survival and recovery.
13. The Recovery Team, formed to provide the minister with advice on the Recovery Strategy and comprised of leading experts regarding the Nooksack dace, could and did identify critical habitat and wished to include that identification of critical habitat in the Nooksack Dace Recovery Strategy.
14. But, at the direction of the Minister and/or his delegate, the Recovery Team removed the identification of critical habitat from the Recovery Strategy and inserted it into a separate document which was not posted to the Public Registry.
[Emphasis in the original]
[5] Thus, the present Application primarily concerns the recovery strategy provisions of SARA as applied to the Nooksack Dace and, in particular, the correct interpretation of s. 41(1)(c) and (c.1):
41. (1) If the competent minister determines that the recovery of the listed wildlife species is feasible, the recovery strategy must address the threats to the survival of the species identified by COSEWIC, including any loss of habitat, and must include
(a) a description of the species and its needs that is consistent with information provided by COSEWIC;
(b) an identification of the threats to the survival of the species and threats to its habitat that is consistent with information provided by COSEWIC and a description of the broad strategy to be taken to address those threats;
(c) 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;
(c.1) a schedule of studies to identify critical habitat, where available information is inadequate;
(d) a statement of the population and distribution objectives that will assist the recovery and survival of the species, and a general description of the research and management activities needed to meet those objectives;
(e) any other matters that are prescribed by the regulations;
(f) a statement about whether additional information is required about the species; and
(g) a statement of when one or more action plans in relation to the recovery strategy will be completed.
[Emphasis added]
41. (1) Si le ministre compétent conclut que le rétablissement de l’espèce sauvage inscrite est réalisable, le programme de rétablissement doit traiter des menaces à la survie de l’espèce — notamment de toute perte de son habitat — précisées par le COSEPAC et doit comporter notamment :
a) une description de l’espèce et de ses besoins qui soit compatible avec les renseignements fournis par le COSEPAC;
b) une désignation des menaces à la survie de l’espèce et des menaces à son habitat qui soit compatible avec les renseignements fournis par le COSEPAC, et des grandes lignes du plan à suivre pour y faire face;
c) la désignation de l’habitat essentiel de l’espèce dans la mesure du possible, en se fondant sur la meilleure information accessible, notamment les informations fournies par le COSEPAC, et des exemples d’activités susceptibles d’entraîner sa destruction;
c.1) un calendrier des études visant à désigner l’habitat essentiel lorsque l’information accessible est insuffisante;
d) un énoncé des objectifs en matière de population et de dissémination visant à favoriser la survie et le rétablissement de l’espèce, ainsi qu’une description générale des activités de recherche et de gestion nécessaires à l’atteinte de ces objectifs;
e) tout autre élément prévu par règlement;
f) un énoncé sur l’opportunité de fournir des renseignements supplémentaires concernant l’espèce;
g) un exposé de l’échéancier prévu pour l’élaboration d’un ou de plusieurs plans d’action relatifs au programme de rétablissement.
[Je souligne]
[The COSEWIC referred to in the provision is the Committee on the Status of Endangered Wildlife in Canada established by s. 14]
Of primary concern with respect to s. 41(1)(c) and (c.1) is the definitions of “habitat” for aquatic species and “critical habitat” provided in s. 2 of SARA:
"habitat" means
(a) in respect of aquatic species, spawning grounds and nursery, rearing, food supply, migration and any other areas on which aquatic species depend directly or indirectly in order to carry out their life processes, or areas where aquatic species formerly occurred and have the potential to be reintroduced; and
…
"critical habitat" means 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 for the species.
« habitat »
a) S’agissant d’une espèce aquatique, les frayères, aires d’alevinage, de croissance et d’alimentation et routes migratoires dont sa survie dépend, directement ou indirectement, ou aires où elle s’est déjà trouvée et où il est possible de la réintroduire;
[…]
« habitat essentiel » L’habitat nécessaire à la survie ou au rétablissement d’une espèce sauvage inscrite, qui est désigné comme tel dans un programme de rétablissement ou un plan d’action élaboré à l’égard de l’espèce.
The issue is whether the term “habitat” includes two features: a defined geographic area capable of being located on a map and the physical and biological attributes of that area that allow a species to use it for the function of carrying out its life processes.
[6] The recovery strategy provisions of SARA are one component of a comprehensive protection strategy. Following meeting the recovery strategy requirements in s. 41, the action plan element takes effect as set out in sections 47 to 55. There is no dispute that the scheme of these two elements is to first provide a baseline of information about the biology and ecology of a species and a broad strategy to address conservation threat. In contrast, action plans are intended to describe more detailed “action” measures to achieve a species’ survival and recovery, including evaluation of the socio-economic costs and benefits of such measures.
[7] For contextual clarification, the recovery strategy and action plan elements of SARA are quoted in the Annex “A” to these reasons.
II. The Minister’s Final Recovery Strategy Decision
[8] The process leading to the posting of the Final Recovery Strategy of the Nooksack Dace involved the preparation of a Draft Proposed Recovery Strategy, the posting of the Proposed Recovery Strategy, public consultation, and then the posting of the Final Recovery Strategy.
[9] Therefore, five sequential actions are the focus of the present judicial review: the preparation of a Draft Proposed Recovery Strategy in June 2005; the June 21, 2006 direction by Ms. Allison Webb, the Regional Director of Policy for the Department of Fisheries and Oceans (DFO) in the Pacific Region with respect to the contents of the Proposed Recovery Strategy to be posted and which was posted for comment on September 25, 2006; the July 18, 2007 departmental recommendation of Mr. Pardeep Ahluwalia, Director General, SARA Secretariat, directed to Mr. Larry Murray, Deputy Minister of Fisheries and Oceans to approve Ms. Webb’s decision; Mr. Murray’s concurrence to the recommendation on behalf of the Minister on July 18, 2007; and the July 23, 2007 posting of the Final Recovery Strategy. It is agreed that Mr. Murray had authority to concur on behalf of the Minister and, thus, the concurrence is the decision of the Minister.
[10] While the present Notice of Application cites the decision under review as that of the posting of the Final Recovery Strategy by the Minister on July 23, 2007, it is agreed that the decision under review is composed of the actions of Ms. Webb, Mr. Ahluwalia, Mr. Murray, and the content of the Final Recovery Strategy considered together.
A. The Recovery Team’s Draft Proposed Recovery Strategy
[11] Recovery strategies under SARA in British Columbia for freshwater fish are developed by a Recovery Team composed of a core group of experts and others added to assist with individual species as needed. With respect to the Nooksack Dace, a subcommittee of such a team was formed in December 2003 to begin assessment of the Nooksack Dace and to continue assessment of the Salish Sucker; one of the members of the sub-working group was Dr. Mike Pearson, a self-employed professional biologist who is the lead authority in Canada on the ecology, conservation, and habitat needs of freshwater fish generally and, in particular, the Nooksack Dace and Salish Sucker. Dr. Pearson has provided his expertise to DFO under contract since 2003.
[12] Dr. Pearson was requested to prepare a preliminary draft of a recovery stategy for both the Nooksack Dace and Salish Sucker for the consideration of the Recovery Team with an eye towards placing a final draft before the Minister as the Proposed Recovery Strategy required to be posted pursuant to s. 42(1) of SARA. Dr. Pearson’s affidavit filed in the present Application supplies contextual information about meeting this request (see Affidavit of Mike Pearson, Applicants’ Application Record, Vol. 1, Tab 6).
[13] At paragraph 15, Dr. Pearson provides the Minutes of the Recovery Team’s meeting on December 10, 2003 which contains the following description of the challenge that the definition of critical habitat presented:
…the main protective measures of SARA do not kick in until critical habitat is defined. Although there is much within -and among- agency discussion about how to go about defining critical habitat there is at present no clear direction coming from the agencies on how to do this. The wording of SARA implies that the legislators are deferring to the expertise of relevant groups to define critical habitat.
At paragraphs 17 and 18, Dr. Pearson makes the following comment about meeting the challenge:
I considered it very important that we identify critical habitat. Nooksack dace are under threat primarily from habitat loss and degradation in each of the four watersheds they inhabit in Canada. Various forms of habitat loss and degradation including water withdrawal from wells and streams, toxicity associated with urban storm drainage, channel dredging for drainage, and loss of riparian (stream-side) vegetation are all major concerns in one or more of these watersheds. Because of this, protection of critical habitats is key to addressing the primary threats endangering Nooksack dace. Indeed, it is the key factor in ensuring the survival of the species.
According to the SARA, ‘critical habitat’ means the habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified in the recovery strategy or in an action plan for the species. In biological terms, I recognized two thresholds in this definition: survival and recovery. In biological terms, I interpreted the survival threshold as the habitat required to support the minimum viable population size (MVP) for the species in each of the watersheds it currently occupies. The recovery threshold was as set out as the recovery goal in the Nooksack dace Recovery Strategy: “To ensure the long-term viability of Nooksack dace populations throughout their natural distribution in Canada.” It includes some amount of additional habitat, but recognizes that the full recovery of Nooksack dace populations to historic levels is not possible given the extent and permanence of habitat loss and degradation in their native watersheds.
[14] At paragraphs 19 to 24, Dr. Pearson describes the process of identifying the critical habitat of the Nooksack dace:
When I began preparing the Nooksack dace Recovery Strategy, direction on identifying critical habitat was drawn from a template for recovery strategy preparation contained in an October 2004, species at risk recovery planning handbook produced by the Canadian Wildlife Service, an agency of Environment Canada. The template was forwarded to me by Dr. Todd Hatfield, Coordinator of the Recovery Team. The template states:
“Critical habitat is defined in SARA as “the habitat that is necessary for the survival or recovery of a listed wildlife species…” It should relate to the recovery goal: if the goal is survival (maintaining existing population size and distribution), then the critical habitat would be the habitat currently occupied by the species. If the recovery goal is full recovery, then the critical habitat would be the habitat needed by the species in order to maintain a self-sustaining and viable population level. In most cases, the recovery goal and the identified critical habitat will fall somewhere within the continuum from survival to full recovery.
*Note that critical habitat is not formally identified until the recovery strategy or action plan for the species that contains the critical habitat identification has been included as the final in the SARA public registry. Until that time, the identification of critical habitat should be developed to the extent possible, but be considered a proposal only (as advice to the competent minister).
The critical habitat proposal should be developed with reference to population and distribution goals, particularly with respect to the amount, distribution and connectivity of habitat patches. Where data are incomplete, critical habitat identification should be done in stages. Identify what you can in well-studied areas now and develop a schedule of studies (see below) for areas that are more poorly known.”
I was also aware that SARA requires identifying critical habitat to the extent possible, I took that at face value, seeking to identify critical habitat in terms of describing both the qualities of critical habitat as well as describing as best I could where it was; that is, delineating its specific location and extent on a map.
To illustrate the process of identifying Nooksack Dace critical habitat, I briefly set out below the method the Recovery Team chose. This method was based on:
1. an estimate of minimum viable population size (MVP) for the species. This is the minimum number of breeding adults necessary for a population to be likely to survive in the wild.
2. a definition allowing the identification of suitable (potential critical) habitat in the field.
3. an estimate of the area of suitable habitat on the landscape.
4. an estimate of mean population density of Nooksack dace in suitable habitat.
1. Estimation of the minimum viable population size (MVP).
Statistical methods of assessing MVP exist, but depend on detailed demographic data not available for Nooksack dace or many other species at risk. High quality estimates for well over 100 species do exist in the literature, however. They range from 2000 to 10,000 reproductive individuals. The Recovery Team concluded that the Nooksack dace MVP was likely to be in the low to mid thousands. The Team further concluded that the population of Nooksack dace in each watershed (creek) needed to be assessed separately as they are geographically isolated from one another. Being geographically isolated means that Nooksack dace cannot move between the watersheds and the population in one watershed thus cannot contribute to the survival of that in another watershed. In effect, each watershed’s population must be managed as though the others do not exist, so to maximize the chances that the Nooksack dace will survive in Canada. Therefore, each watershed’s population must be kept at least as large as the MVP. Therefore, critical habitat for the species as a whole must include all critical habitat for each of the populations.
2. A definition allowing the identification of suitable (potential critical) habitat.
The Nooksack dace is a habitat specialist with a small geographic distribution. It is found only in and around riffle habitats (areas of shallow turbulent flow over rocky substrate). This is well documented by every researcher who has studied them. The Nooksack dace is considered a subspecies of the longnose dace (R. cataractae), also a well known as a riffle specialist across its continental range. Nooksack dace spawn, rest, forage, and over-winter in riffles, and many appear to remain in very small home ranges, covering less than 50 m of stream. In the course of my research, I waded or canoed the entire length of all streams Nooksack dace are known to inhabit in Canada, and mapped the extent of riffle habitat under low flow conditions. As is customary in stream surveys, I divided each stream into a number of reaches (segments of streams with relatively homogenous habitats). For of the 72 reaches identified in the Nooksack Tributaries (The Brunette River population was not included as it was only discovered in 2005, after this study was completed.) I measured the length of major stream habitat types (pools, riffles, glides), categorized substrate particle size, in-stream cover availability and land use within 200m of the channel, and sampled for Nooksack dace presence using minnow traps. I used a statistical model (logistic regression) to show that the extent of riffle habitat in a reach is, by far, the best predictor of Nooksack dace presence. They are found in fewer than half of all reaches containing less than 10% riffle by length. In aggregate these data provided a strong scientific basis for identifying areas of suitable, or potential critical habitat.
3. An estimate of the area of suitable habitat on the landscape.
I multiplied the length of riffle habitat in each reach by the average channel width in that reach to estimate total riffle area in the watershed.
4. An estimate of mean population density in suitable habitat.
I used a field-derived estimate of Nooksack dace density in high quality habitat of 1.9/m2.
Multiplying of riffle area in each watershed by the population density in high quality habitat yielded an estimate of the watershed’s maximum achievable population (carrying capacity) for Nooksack dace if all of the habitat were in excellent condition. We then compared this to our estimate of minimum viable population size (MVP) for each watershed, which is low to mid thousands of Nooksack dace.
The riparian portion of potential critical habitat was assessed and mapped using an adaptation of the BC Governments Riparian Area Regulation assessment methodology as described in Exhibit “G”, which are consistent with the habitat needs of Nooksack dace.
If the area of suitable habitat available in the landscape is less than that necessary to support the MVP, either all available habitat should be identified as critical, and additional habitats be restored until enough is available to support the MVP, or recovery should be declared not feasible. This is because a population of Nooksack dace that is smaller than the MVP cannot be expected to persist in the wild. If the suitable habitat area far exceeds the area necessary to meet the MVP, not all of the habitat may be needed in order to ensure survival. In either case, more habitat than just that needed to support the MVP of Nooksack dace would still need to be identified as critical habitat, to meet the recovery goal for the Nooksack dace by moving the population towards the higher threshold of recovery.
The maximum achievable population size of Nooksack dace for the Nooksack tributaries, assuming all habitat was of excellent quality, ranged from 3000 to 5700 fish. This led the Recovery Team to conclude in the Recovery Strategy (pg 19) that “the maximum achievable population size is close to the minimum viable population size and that all suitable habitats should be designated critical.” Actual populations are believed to be much lower than this ideal-world estimate, as most habitat is degraded, In the recently accepted COSEWIC status report on Nooksack dace (referred to in paragraphs 8 and 13), I estimated that only 300 and 800 Nooksack dace remain in Fishtrap and Pepin Creeks respectively. These numbers are significantly lower than the estimated MVP for Nooksack dace.
Based on the application of these 4 variables, we were able to determine with a reasonable degree of certainty the quantity and location of critical habitat needed for survival of the Nooksack dace. Because we concluded, as stated above, that “the maximum achievable population size is close to the minimum viable population size and that all suitable habitats should be designated critical” we recognized the necessity for protecting critical habitat in each of the Nooksack Tributaries.
[Emphasis added]
[15] Dr. Pearson provided his draft to the Recovery Team in June 2004, and a second draft in January 2005. The Recovery Team then provided its final “Draft Recovery Strategy” to DFO in June 2005.
B. Ms. Webb’s direction
[16] With respect to the Recovery Team’s Draft Recovery Strategy, and with respect to compliance with s. 41(1)(c) of SARA, Ms. Webb made the critical decision to direct the altering of all draft recovery strategies then in progress in the Pacific Region of DFO, including the Nooksack Dace Draft Recovery Strategy; the altered document was proposed three months later as the Proposed Recovery Strategy. The action taken by Ms. Webb is described in the following email sent on her behalf on June 21, 2006 by Ms. Liane O’Grady a DFO employee:
Subject: Update on Critical Habitat Identification and Policy Development
Hi Everyone,
Just thought I would send along a few recent developments with regards to the identification of critical habitat in recovery strategies and a renewed focus on SARA policy development in NHQ.
Critical Habitat ID:
Recently, a decision that was made regarding direction on critical habitat in recovery strategies. This has been a difficult and long standing issue for us in Pacific Region as well as for others (there have been similar concerns in C&A). As a result, after extensive regional discussion it has been decided that critical habitat should be removed from all RS [Recovery Strategies in the Pacific Region] in process and for the foreseeable future until a clear policy direction has been provided. The reasons for this decision are as follows:
• Critical habitat identified in some recovery strategies had not yet undergone scientific peer review. To complete this would require further time delays (2-4 months). In addition, PSARC is still in the process of considering how to move forward on the peer review of SARA habitat related science.
• The Act itself and current draft policy are very clear that consultation must occur with any parties affected by the identification of critical habitat. At this point it is not clear that all potentially affected parties have been consulted.
• Neither the policy nor operational guidelines on the identification of critical habitat have been finalized leading to the potential for inconsistent identification and protection within the region and across the department.
• There has been no legal review of this policy. Also, the request for a legal opinion as to the legal obligations of the Minister with respect to posted recovery strategies has not yet been completed.
• Current expectations are that the Fisheries Act and Oceans Act are to be used to protect critical habitat, yet the definition of critical habitat is not consistent with the SARA definition.
• We would like to proceed cautiously with the identification of critical habitat, while still recognizing that we have a legal obligation to do so, given that we may be setting a precedent where we are uncertain as to the potential impacts of doing so.
The region is cognizant of the fact that it has already missed the deadline for posting the Nooksack Dace, Hotwater Physa, and Killer Whale recovery strategies on the SARA Public Registry and believes that it would not be beneficial to encounter further substantial delays pending resolution of the above noted concerns. I realize that this will cause some frustrations amongst staff who have worked diligently on our recovery teams, but it is better to have thoughtfully considered the impacts of critical habitat identification and to move forward in a coherent manner consistent with national direction. We will continue to work actively with our counterparts in NHQ to ensure that policy work done on critical habitat includes discussion and adequate direction for staff working at the operational level.
Policy Framework Development:
The recent SARA program evaluation flagged the urgent need for EC/DFO/PCA to complete the SARA policies and guidelines in order to assist in effective implementation of the Species at Risk Act. As a result, the DM Steering Committee and the SARA ADM Committee have flagged a number of policy priorities (listing/delisting, socio-economic analysis, identification and protection of critical habitat, protection of species at risk, permits and agreements, activities authorized in recovery planning documents, feasibility of recovery, and consultation), which have now been incorporated into the draft SARA Policy Framework which is attached. There is currently a push to move forward on external consultations of this policy framework, however adequate regional review and comment has not yet been completed. I am hoping to provide NHQ with a regional response for their consideration prior to the framework being finalized and external consultations being initiated. If you would like to provide comments, please pass them on to me by Wednesday July 5th. (My apologies to those of you who may have now received this information more than once).
[Emphasis added]
(Respondent’s Record, Vol. 1, Tab 20, pp. 16 – 17)
[17] The details of “critical habitat” that Ms. Webb decided to remove are described by Dr. Pearson as follows:
In September 2006, the Proposed Recovery Strategy was posted on the SARA public registry with some of the information related to the critical habitat removed. Specifically, our map of Nooksack Dace critical habitat (Figure 4, page 13 of Exhibit “D”), and a table listing activities likely to result in destruction of critical habitat (page 14) were removed, and the description of critical habitat altered to remove references to its length and the specific definition. For example, the sentence “The combined length of proposed critical
habitat in the three watersheds where it has been surveyed is 21.3 km (of 36.4 km of surveyed stream channel)” was removed.
(Pearson Affidavit, para. 30)
C. The recommendation to Mr. Murray
[18] The following Memorandum, dated July 18, 2007 was sent by Mr. Pardeep Ahluwalia, Director General of the SARA Secretariat, to Mr. Larry Murray for his concurrence as an authorized delegate of the Minister of Fisheries and Oceans:
MEMORANDUM FOR THE DEPUTY MINISTER
POSTING ON THE PUBLIC REGISTRY OF FINAL RECOVERY STRATEGIES FOR THE MORRISON CREEK LAMPREY, NOOKSACK DACE AND SIX STICKLEBACK SPECIES UNDER THE SPECIES AT RISK ACT (SARA)
(For your signature)
Summary
• Under the Species at Risk Act (SARA), a proposed version of a recovery strategy must first be posted on the SARA public registry for a 60-day comment period. The competent minister then has 30 days to incorporate comments received as appropriate, and post the final recovery strategy on the public registry.
• A proposed recovery strategy for the Morrison Creek Lamprey, one for the Nooksack Dace, and one covering six Stickleback species were posted on the SARA public registry on September 20, September 26, and October 10, 2006, respectively.
• None of the recovery strategies identify critical habitat. The David Suzuki Foundation and Sierra Legal Defence have sent letters voicing their concerns regarding missed timelines for posting recovery strategies, and notably, the absence of critical habitat identification in the Nooksack Dace recovery strategy.
• The critical habitat section of the Nooksack Dace and Stickleback recovery strategies has been modified to indicate that DFO will conduct peer reviews of the Recovery Team’s recommendations related to critical habitat before it is identified in a SARA action plan. No substantial changes have been made to the final Recovery Strategy for the Morrison Creek Lamprey.
• It is recommended that you approve posting on the public registry of the final versions of all three recovery strategies. The proposed versions of these recovery strategies were approved by ADM Science, ADM Oceans & Habitat, ADM FAM and ADM Policy in the fall of 2006, and no significant content changes have been made to the final versions.
Background
• The Morrison Creek Lamprey, Nooksack Dace, and Paxton Lake and Vananda Creek Stickleback species pairs were included as endangered species on the List of Wildlife Species at Risk (Schedule 1) of the Species at Risk Act (SARA) when the Act came into force in June 2003. Under s. 42(2) of SARA, the proposed recovery strategy for these species was to be posted on the public registry by June 2006.
• The Enos Lake Stickleback pair was listed as endangered under SARA in January 2005, and a proposed recovery strategy for this species was due is due in January 2008. A single recovery strategy covering all three Stickleback species pairs (each pair comprising a benthic form and limnetic form, for a total of six species) was prepared due to similar ecology and threats.
• The 60-day public comment period of proposed recovery strategies ended on November 19, 2006 for the Morrison Creek Lamprey, on November 25 for the Nooksack Dace, and on December 9 for the Stickleback species pairs.
• Following the comment period, the competent minister has 30 days to review the comments received, make changes as appropriate, and post the final version of the recovery strategy on the SARA public registry. Final recovery strategies for the Morrison Creek Lamprey, Nooksack Dace, and Stickleback species pairs were to be posted on the public registry on December 19, 2006, December 25, 2006, and January 8, 2007, respectively.
Analysis / DFO Comment
• No significant changes have been made to the final recovery strategies for Morrison Creek Lamprey, Nooksack Dace, and Stickleback species pairs. One comment on each proposed recovery strategy was received through the public registry, and the information has been incorporated where appropriate after consultation with the Province of British Columbia and the Recovery Team.
• The declaration in the final version of the documents has been modified to the effect that the British Columbia Ministry of Environment has reviewed and accepts the recovery strategies as scientific advice. This wording makes it more explicit that recommendations therein do not impose commitments on the province of BC. The Province has participated in the development of the three recovery strategies as per the requirements of SARA and of the Bilateral Agreement.
• Critical habitat is not identified in any of the three recovery strategies. The David Suzuki Foundation and Sierra Legal Defence