Federal Court Weighs-In On SARA Critical Habitat

The Federal Court has now delivered two recent decisions

concerning the federal Species at Risk Act, S.C. 2002, c.

29 (SARA) and the identification of critical habitat for species at

risk listed in Schedule I of SARA (i.e., a listed

species). On July 9, 2009, the Federal Court quashed the

Final Recovery Strategy posted by the federal Minister of the

Environment for the Greater Sage-Grouse in Alberta Wilderness

Association v. Minister of Environment, 2009 FC 710, because

the Final Recovery Strategy identified insufficient critical

habitat. On September 10, 2009, the Federal Court also

quashed the Final Recovery Strategy for the Nooksack Dace by the

federal Minister of Fisheries and Oceans (MFO) in Environmental

Defence Canada v. Minister of Fisheries and Oceans, 2009 FC

878 for similar reasons. The decisions demonstrate that ENGOs

are fully prepared to enforce the SARA in court, which will have

important implications for project

proponents.

1. SARA And Critical Habitat

   Species listed on Schedule I of the SARA have been identified as

   facing imminent extirpation (i.e., no longer existing in the wild

   in Canada, but existing elsewhere in the wild) or extinction.

   Section 37 of the SARA provides that the competent Minister must

   prepare a recovery strategy for species on Schedule I of the

   SARA. The SARA prescribes a two-step recovery planning

   process for endangered species. The first step is the

   preparation and posting of a recovery strategy and the second step

   is the development and posting of an action plan to implement the

   recovery strategy.

   Section 41 of the SARA sets out the content of a recovery

   strategy and depends on whether the Minister has determined that

   the recovery of the listed species is feasible or not.

   Paragraph 41(1)(c) of the SARA provides that a recovery strategy

   must include "an identification of the species' critical

   habitat, to the extent possible, based on the best available

   information, including the information provided by COSEWIC, and

   examples of activities that are likely to result in its

   destruction." "Critical habitat" is given a

   separate meaning from "habitat" under the SARA and is

   defined to mean "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."

2. Alberta Wilderness Association v. Minister Of

   Environment

   In this case the applicants argued that the Recovery Strategy

   failed to identify the Greater Sage-Grouse's critical habitat

   as mandated by the SARA. While the recovery strategy did not

   identify critical habitat, it did include a schedule of activities

   to be completed in order to identify critical habitat for the

   Greater Sage-Grouse. The applicants argued that the best

   available information was such that the MOE could have identified

   some critical habitat for the Greater Sage-Grouse, but instead the

   MOE...