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Minister of Fisheries and Oceans and the Minister of the Environment v. David Suzuki Foundation

País/Territorio
Canadá
Tipo de la corte
Nacional - corte superior
Fecha
Feb 9, 2012
Fuente
UNEP, InforMEA
Nombre del tribunal
Federal Court of Appeal
Sede de la corte
Ottawa
Juez
Sharlow, K.
Mainville, R.M.
Nadon, M.
Número de referencia
2012 FCA 40
Idioma
Inglés
Materia
Especies silvestres y ecosistemas
Palabra clave
Conservación del ecosistema Bosques recreativos Protección del hábitat Especies de plantas protegidas Especies animales protegidas Especies de peces protegidas Protecíon de las especies Agua de uso recreativo
Resumen
Resident killer whales occupied the waters off the West Coast of British Columbia in two distinct populations. The whales were at risk due to their low reproductive rate, small population and exposure to a variety of human-caused threats. The first application by a group of nine non-profit environmental organizations sought to challenge a Protection Statement issued by the Minister of Fisheries and Oceans pursuant to s.58(5)(b) of the Species at Risk Act, S.C. 2002, c. 29 (“SARA”). The second application challenged a Protection Order by the Minister of Fisheries and Oceans and the Minister of the Environment which sought to limit the scope of an earlier Protection Order such that it applied only to geospatial areas or geophysical attributes of the critical habitat. The court ruled that the Department of Fisheries and Oceans must legally protect all aspects of killer whale critical habitat — including their food supply and the quality of their marine environment. DFO appealed that decision, claiming that discretionary provisions in the Fisheries Act adequately protect the critical habitat of aquatic species such as the killer whale. The Act however, does not make critical habitat protection mandatory, as is the case under SARA. Instead, the Fisheries Act gives the Minister broad discretion to authorize activities that destroy habitat. The Federal Trial Court made findings with respect to protection statements and protection orders which apply to aquatic species under SARA. The appeal only dealt with the decision regarding protection statements. The appeal focused on the issue of whether the government can rely upon other legislation to protect critical habitat of aquatic species if that legislation provides the government with the discretion to authorize harm to that habitat. The Trial Court had held that any protection provided by other federal instruments must be a legal protection and equivalent to the protection provided under SARA, and that an analysis of that equivalency must include consideration of what the relevant legislation allows in terms of permitting harm to the critical habitat. Thus, any instrument to be relied on instead of SARA must 1) prohibit the destruction of the critical habitat, and 2) must not grant discretion to the relevant ministry to allow for the destruction of that habitat, unless that discretion is limited in the same manner as SARA’s permitting provisions. Because of the discretion given to the government to authorize harm to habitat or deposits of deleterious substances under the Fisheries Act, it could not act as a “surrogate” to protect the critical habitat of the Killer Whale. The DFO made two arguments on the substance of the Appeal, both of which were rejected. First, the DFO argued that while the Fisheries Act does allow for discretion to authorize harm, the Minister would not actually exercise this discretion to lessen the protection of the Killer Whale. The Court held that there was no way that it could meet the requirement in SARA for legal protection as the Minister could change his mind and exercise discretion under the Fisheries Act to destroy critical habitat. Second, the DFO argued that SARA itself allows for flexibility in the manner in which activities which affect critical habitat can be authorized. In considering this argument, the Court reviewed the permitting provisions in SARA to determine what impacts the government can allow with respect to critical habitat. The Court went on to find that SARA’s protection of critical habitat is non-discretionary and compulsory. It also held that critical habitat of aquatic species “cannot be destroyed or detrimentally affected through a permit or other authorization issued in application of section 74 or 77 of SARA”. The Court went even further, concluding that a textual, contextual and purposive analysis of SARA shows that Parliament “is precisely seeking to avoid the destruction of identified critical habitat of listed endangered and threatened aquatic species through any means, including through activities authorized under discretionary permits or licences”. The appeal is allowed in part, declaration 1(d) of the Federal Court’s judgment is quashed in part, and it is replaced by the following declaration: Ministerial discretion does not legally protect critical habitat within the meaning of section 58 of the Species at Risk Act, and it was unlawful for the Minister to have cited provisions of the Fisheries Act in the Killer Whales Protection Statement where such provisions are subject to ministerial discretion.The costs of this appeal are awarded to the respondents.
Texto completo
COU-158073.pdf