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


  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


  2. Alberta Wilderness Association v. Minister Of


    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


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