The Ongoing Saga Of The Sage Grouse

The sage grouse is an endangered species. It is estimated that there are currently only 100 greater sage-grouse remaining in Canada. Environmental groups point towards habitat loss and degradation as a result of agricultural and industrial uses of land as the leading cause of endangerment. Although the sage-grouse historically inhabited many areas in western Canada, its populations are now confined to southeastern Alberta and southwestern Saskatchewan.

The federal Government has recognized the sage-grouse as an endangered species pursuant to the Species at Risk Act ("SARA"). When a species is designated federally as endangered, the Minister of Environment is required to prepare a recovery strategy for that species pursuant to SARA. The Government of Canada issued a federal Recovery Strategy pursuant to SARA in respect of the sage-grouse on January 14, 2008.

In 2009,1 several environmental groups (the "Applicants"), applied to the Federal Court of Canada to review the Recovery Strategy for the sage-grouse. The Applicants cited an alleged breach by the Minister of Environment to identify as much critical habitat of the sage-grouse as possible based on the best available information, which is required by SARA as read together with the precautionary principle. "Critical habitat" is defined under SARA as "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". Instead, the Recovery Strategy included a schedule of activities that were to be completed in order to identify a critical habitat, rather than identifying the habitat itself.

The Court reviewed the issue of whether as much critical habitat as possible was identified as a question of fact on the standard of reasonableness. While the Court found that it was reasonable to conclude that no critical winter habitat of the sage-grouse could be identified given inadequate available information regarding such seasonable habitat, it was unreasonable to not have included the sage-grouse breeding habitat, also known as "leks", as there was already sufficient available information regarding that critical habitat. There was evidence that the Minister had conceded that leks were necessary for the survival or recovery of the sage-grouse population, and the Government of Alberta's procedure of labeling and naming leks locations indicated that some leks...