Killer Whale Judgment Released – Canada still has responsible Government

David Suzuki Foundation et al. v. Canada (Minister of Fisheries and Oceans, Minister of the Environment) 2010 FC 1233

The Federal Court released a very important decision earlier this week on the Northern and Southern Resident Killer Whales and the protection of their habitat under federal Species At Risk Act (SARA). The Southern Resident Killer Whales are listed as endangered under SARA and the Northern Resident Killer Whales are listed as threatened.

The decision confirms that SARA requires mandatory legal protection that is enforceable for all the features of critical habitat identified in a recovery strategy.  It goes beyond the previous decisions of the Federal Court by addressing what constitutes “legal protection” under SARA once critical habitat is identified.

The case is but one in a series of disputes involving the federal Department of Fisheries and Oceans (DFO)  attempts to insert policy considerations into the protection of habitat under SARA.  SARA requires mandatory protection of all features and locations of habitat necessary for the survival and recovery of a listed endangered or threatened species (“critical habitat”).  This includes both physical features of the habitat and biological features.  The Act provides for protection orders, protection statements, and conservation agreements to give effect to this protection.

For the Resident Killer Whales, critical habitat includes physical features like the ocean and biological features like the availability of food (salmon) and a quiet aquatic environment for whale communication.  DFO officials attempted on several occasions to remove quiet, clean water and salmon availability, from the features of “critical habitat” of Resident Killer Whales and activities causing noise, reducing water quality or salmon availability from threats to that habitat.  First, they attempted to remove these features from the recovery strategy, the document that identifies critical habitat for legal purposes, then when they issued a protection statement and later a protection order, they attempted to limit the scope of these to exclude the destruction of these features of critical habitat. [25-39]

Essentially the case turned on DFO’s policy that it only needs to protect physical features of habitat under SARA, but has discretion how to “manage” the destruction of other features.  In other words, DFO interpreted SARA so that SARA did not protect the features of habitat that creatures depend on, like food and the ability to communicate in the case of Resident Killer Whales.

As in the last two major decisions on SARA the Federal Court confirmed that the statutory interpretation of SARA is to be reviewed on a standard of correctness.[59]  The applicants argued that a protection statement (or protection order) under SARA has five requirements to constitute “legal protection,” most of which relate to the mandatory and enforceable nature of the legal protection as well as the scope of that protection, which must include all components of critical habitat.[73]  The court agreed with this.

The court agreed that discretionary actions, policies, codes and other non-binding instruments were not sufficient to protect critical habitat, and found that the clear intention of SARA was that critical habitat protection be mandatory and enforceable.[76-81] Finally the court found that it was unlawful to exclude food and noise from the scope of features that were protected. [88]

The court seemed fully cognizant that the issue in the case was actually a rule of law issue.  Fundamentally, the question was whether Parliament or the Ministers of a particular government rule supreme.  The court recognized that by asking for deference in the interpretation of SARA, the Ministers sought to infiltrate the statute with their own policies, instead of Parliament’s.[173-175] This decision confirmed that Ministers are subordinate to Parliament.[176]  Since Parliament intended mandatory legal protection, Ministers could not water this down.

In addressing this tension between Ministerial discretion and Parliamentary supremacy the court also commented on the role of section 11 conservation agreements, which are another alternative to the protection order and protection statement features of SARA. The court was clearly of the view that like the protection order and protection statement a section 11 conservation agreements must also result in legal, mandatory protection. [285]

The case also provided extensive comment on how the discretionary nature of protection in the Fisheries Act is no substitute for the mandatory provisions of SARA. [299-333] It also highlighted the ability to destroy habitat through the authorizations of projects under the Canadian Environmental Assessment Act. [334] Finally, it confirmed that provincial laws cannot be cited as “legal protection” in a protection statement [335].  The court issued declarations that both the protection statement and the protection order for the Resident Killer Whales were unlawful.

For Alberta, the implications may prove significant for industry with respect to species like Caribou and Sage Grouse, whose habitat may be “destroyed” by human activities that do not destroy the physical attributes of the habitat.  It also confirms that Alberta legislation, including land use plans, will likely not be treated as “legal” protection under the mandatory protection provisions in SARA.

The case was brought by a number of environmental groups. Ecojustice provided counsel.

Also see the analysis on Ablawg

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Bill C-311 the Climate Change Accountability Act: action or aspiration?

On May 5, 2010 federal Parliament narrowly passed the opposition-driven Climate Change Accountability Act.  The event garnered little press attention – and for good reason.  First, the Act, a private member’s bill, passed by only 13 votes, with 23 MPs not voting – an abysmal show of democratic apathy and disinterest.  Second, the Act is likely to be of little or no consequence to government action on climate change.

Although a range of NGOs supported Bill C-311, the problematic legal issues with it were never fully addressed.  After the Supreme Court of Canada declined to grant leave in the case of Friends of the Earth v. Canada, (2008 FC 1183, (T.D.) appeal dismissed 2009 FCA 297) in March 2010, the Climate Change Accountability Act should have been re-drafted.

In Friends of the Earth, the Federal Court trial judge’s reasons prevailed, namely that using the word “ensure”, particularly in s.5 of the Kyoto Protocol Implementation Act (KIPA), did not create a legal duty to implement the protocol.  In the case of KPIA, the court found that it mandated only a process of policy development rather than an enforceable requirement (see paras 37-38 of the trial decision). The court commented:

All of the above measures are directed at ensuring compliance with Canada’s substantive Kyoto commitments through public, scientific and political discourse, the subject matter of which is mostly not amenable or suited to judicial scrutiny.

The court in this decision found that a private member’s bill, in that case the KPIA, that required broad policy decisions be made by Cabinet was unenforceable.  In other words the Act was too general in nature to have the true force of law.  While many may disagree with the details of the court’s approach in this particular case, it is perhaps reasonable for the court to expect that Parliament will pass laws that contain measures, not merely purposes.

So, in light of the failure of the Kyoto Protocol Implementation Act, how does the Climate Change Accountability Act measure up?  After all, it passed only weeks after the appeal decision in Friends of the Earth failed to be overturned.  Sadly, the jurisprudentially dubious word “ensure” rears its head in Bill C-311 over and over again, including in the full title An Act to ensure Canada assumes its responsibilities in preventing dangerous climate change. For example section five reads:

5. The Government of Canada shall ensure that Canadian greenhouse gas emissions are reduced, subject to the ultimate objectives of the United Nations Framework Convention on Climate Change,

Following Friends of the Earth, the reliance on the word “ensure” may make parts of C-311 unenforceable.  It is therefore of limited importance.

Proponents of the legislation are not to blame.  For one thing, C-311 had already cleared committee without amendment by the time leave to appeal in Friends of the Earth was denied, which was unfortunate.  Had the Supreme Court granted leave, this language may well have been defensible.  It is also true that C-311 was directed at the negotiations in Copenhagen, but failed to complete the parliamentary process in time.

Yet there is a bigger message here.  Targets are an overarching policy goal, and a valid legislative purpose.  On the other hand the salient issue is how they shall be achieved.  Parliamentarians and activists need to be bolder in addressing climate change, by putting forward specific measures instead of emission targets without any means of achieving them. The passage of C-311 with its attendant enforceability problems creates a dangerous situation in a democratic society.

Climate policy initiatives do not need to be complex.  Huge inroads could be made into carbon emissions by, for example, phasing out coal-fired power, as Environment Minister Prentice recently indicated was under consideration.  A range of energy conservation, efficiency, transportation and other measures that would have significant benefits are also entirely achievable.  Despite the difficulties inherent in trying to come up with measures that could meet strict targets, there is little excuse for the failure to include any true concrete measures in the proposed legislation.  In contrast, the proposed US climate bill put forward recently contains a range of more specific measures directed at particular emitting sectors and alternatives.  Why are Canadian legislators afraid to take a stand on specific measures when US legislators are willing to do so?

Instead of proactively tabling concrete initiatives – Canada’s representatives have repeatedly put forward abstract bills containing bold targets that leave all the dirty details to Cabinet to worry about.  This approach serves no practical purpose.  Legislating the power for Cabinet to create regulations and plans to meet targets is not governance.  Bill C-311, riding on a wave of political apathy, represents a failure to take risks on real measures.  Targets are the ends, but legislators need to be prepared to provide the means, and soon.

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The scales of just-fish: are letters of advice crappie ways to minnow-mize harm? The case of Cassiar Watch

The scales of just-fish: are letters of advice crappie ways to minnow-mize harm?  The case of Cassiar Watch

The federal Fisheries Act R.S.C. 1985, c. F-14 is one of Canada’s oldest and most important environmental laws.  Sections 35 and 36 of the Act are directed at the protection of fish and fish habitat from practices that might harmfully alter and destroy fish habitat, and practices that may pollute water respectively.  These two sections are arguably the most important environmental provisions relating to water quality and riparian land management.

Section 35(1) of the Fisheries Act provides a general prohibition on the “harmful alteration, disruption or destruction” of fish habitat, often referred to as “HADD.” This means that any activity by any person in Canada, in or around fish habitat that results in HADD is illegal. The only relief from this general prohibition is when an authorization is provided by the federal Department of Fisheries and Oceans (DFO) under s. 35(2) of the Fisheries Act.

Authorizations under s. 35 are also “triggers” for an environmental assessment under the Canadian Environmental Assessment Act S.C. 1992, c. 37 (CEAA).  This means that if anyone wants to undertake a project that will destroy fish habitat, they must apply for a s. 35(2) authorization, and before they can get one, they must provide an environmental assessment of the project to DFO.  This assessment can be approved only if the project as a whole will not likely result in any significant adverse environmental effects or the effects are likely but can be “justified in the circumstances.”  In this way, projects that will disrupt fish habitat are fully assessed for the range of potential impacts on the environment in a transparent manner.

The combination of authorization and environmental assessment has resulted in the key importance of s.35 of the Fisheries Act to environmental law in Canada.  It ensures that any project that interferes with fish-bearing waterways is done with a view to sustainable development and is subject to public scrutiny.

However a number of driving forces at the federal level have resulted in a diminishment of the utility of the Fisheries Act for environmental protection.  Since approximately 1995 the federal Department of Fisheries and Oceans has utilized a device known as a “letter of advice.”  These letters are sent by DFO to project proponents and purport to assess the risk of HADD for a given project.  Environmentalists in Canada have been extremely concerned about the growing use of letters of advice over the last fifteen years because instead of a full assessment of the project and its potential impacts, DFO does a very limited summary evaluation of potential impacts.  If a letter of advice “advises” the proponent that destruction of fish habitat is “unlikely” then no section 35(2) authorization is sought.  For over a decade now, environmentalists have argued that the use of letters of advice was an unlawful way for DFO to avoid conducting environmental assessments and monitoring authorizations for the destruction of fish habitat.

Letters of advice have no specific legislative authority behind them in the Fisheries Act.  This administrative “risk management” approach taken by DFO is of great significance to environmental law and the rule of law in Canada.  At its core, the issue is whether administrative agencies, such as DFO, can circumvent the intention of the legislature (i.e. that fish habitat destruction be authorized and assessed) through administrative policies and devices.  On the ground, this question relates to whether the public, fishers and those who use waterways know about projects that may disturb or destroy fish habitat and are able to communicate with government officials about potential impacts on communities and the environment before irreversible decisions are made.

According to a 2008 affidavit sworn by Martha Kostuch: prior to the enactment of the CEAA, the number of authorizations annually by DFO under s.35(2) was in the range of the tens of thousands.  Subsequent to the adoption of the DFO risk management approach these numbers plummeted to less than a thousand annually.  This suggests that the risk management framework is aimed less at providing advice on whether projects require an authorization and more at providing a mechanism for avoiding DFO’s daunting environmental assessment responsibilities.

The occasions on which the letters of advice and operational “risk management” policy of DFO have been challenged by environmentalists in a variety of ways that are too numerous to list fully here.  One of the earlier legal commentaries on letters of advice was Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans), [1997] F.C.J. No. 556 (Friends of the West Country).  That case dealt with a motion to produce a letter of advice relevant to that case.  In that instance the Federal Court did not mince words:

Apparently, it is the respondent’s submission that a policy which the DFO has developed internally without any explicit statutory foundation to do so will in some way relieve the Minister of statutory obligations or limit the obligations of the Minister vis a vis subsections 35(2) and 37(2) of the Fisheries Act and, in turn, paragraph 5(1)(d) of the CEAA. ….This is a transparent bureaucratic attempt at sheer evasion of binding statutory imperatives. It is neither cute nor smart, and this Court is not duped by it. By making “policy” not contemplated by the statutes, the DFO types simply cannot immunize the Minister and DFO from judicial review, nor circumvent the environment laws which they decline to obey.

The motion decision these comments are part of was about the production of the letters and so did not affect the validity of letters of advice. Yet one might have expected that DFO would revise its policy in light of the court’s very pointed and unequivocal comments.  DFO made no such changes.

Also of significance is the 2007 environmental petition by Albertan Martha Kostuch seeking justification for the policy from DFO.  The DFO response was that “the Department does not need Parliamentary approval to provide advice to proponents on how to avoid impacts to fish habitat.”  However, letters of advice are much more than simply advice about how to avoid fish habitat impacts, they are factual assessments of the likely impacts of projects that actively circumvent the requirements set out by Parliament in the CEAA for conducting those assessments of risk and mitigation of impacts. This is clear from another part of DFO’s response which states: “Letters of advice confirm that the proposed plan for a work or undertaking will avoid harmful alteration, disruption or destruction of fish habitat and hence comply with section 35(1) of the Fisheries Act.”

Through Martha Kostuch’s petition, it became apparent that DFO relied upon letters of advice to avoid applying environmental assessment requirements, and also that it had no clear process or accountability mechanism for ensuring that fish habitat was not actually damaged in projects that received letters of advice.  This was confirmed by a 2009 report of the Federal Commissioner of the Environment and Sustainable Development which commented:

We found that the Department does not have adequate quality assurance and … cannot demonstrate that projects that represent a risk to fish habitat have been adequately assessed … the Department rarely monitors whether project proponents actually comply with the Department’s conditions of approval or whether proponents’ actions effectively maintained the expected no net loss in habitat.

The status quo leaves thousands of projects that might have been assessed under the CEAA without the level of scrutiny that may have been contemplated by parliament.

This brings us to the context for the case of Cassiar Watch v. Canada (Minister of Fisheries and Oceans) 2010 FC 152, which challenges the issuing of letters of advice head-on.  In 2007 Shell Canada proposed two projects in Northern British Columbia.  Both proposals involved features located on a poorly maintained stretch of Ealue Lake Road that runs adjacent to and crosses the Klappan River in Northern British Columbia to allow access to coal bed methane tenures held by Shell.  Two crossings had washed out and Shell Canada proposed to repair them.  Crossings are typically understood to be a risk to fish habitat.

The significance of the assessment of this project and others like it in the region cannot be overstated.  The project was to be one of many large resource extraction projects proposed for a region of BC referred to as the “sacred headwaters”.  The area is an alpine basin that is the source of the Skeena, Nass and Stikine Rivers and the traditional territory of the Tahltan First Nation.  Coalbed methane extraction is a relatively new and expanding project type in Canada, which raises environmental impact issues including landscape alteration, water quality and quantity issues, as well as fish and forest habitat impacts. Shell’s northern BC coalbed methane project, like many others in the headwaters region also presented specific issues related to its location in woodland caribou and salmon habitat.  At stake in the Shell project is whether fish and caribou using communities could benefit from a full impact assessment.

In November 2007 DFO issued a letter of advice to Shell Canada that the two crossings of the Klappan River were not likely to result in HADD of fish habitat.  The result was that no s.35(2) authorization was required, and no federal environmental assessment would be conducted.  A local group called Cassiar Watch sought judicial review of the letter of advice itself.

The legal questions for determination before the court were: does the Minister have authority to issue a letter of advice; and is the letter of advice of November 2007 subject to judicial review? In February 2010 Justice Campbell of the Federal Court Trial Division dismissed Cassiar Watch’s application for judicial review.  Justice Campbell found that:

In my opinion, the LOA of November 9, 2007 is not amenable to judicial review because it is a non-binding opinion which has no legal effect.

Justice Campbell also found that Cassiar Watch did not reply to and therefore did not challenge the arguments advanced by DFO and Shell Canada regarding whether or not DFO had the authority to issue letters of advice.  The court accordingly appeared to accept the argument of Shell that DFO could rely on the “doctrine of jurisdiction by necessary implication” as well as the argument of DFO that it could rely on the Minister’s “general authority to manage the fishery” under section 4 of the Department of Fisheries and Oceans Act.

From an environmental perspective the benefit from the decision is limited to the clarity that a letter of advice can not have the effect of an exemption in law from the required authorization if harmful alteration, disruption or destruction of fish habitat ensues from the project.   However, Justice Campbell did not address the underlying significance of evading environmental assessment triggers through issuing a letter of advice.

The court also did not address the question of the utilization of letters of advice that may be based on incomplete or inaccurate information about both the project and the aquatic habitat in question.   Such inaccuracies are highly likely to result from failing to do an environmental assessment that would fully outline all of those factual issues for assessment and include public input.  It remains to be seen if letters of advice can be used as defences to prosecution where in fact there is harm to fish habitat without any authorization and the advice in the letter is unreasonable.

This is a truly disappointing outcome.  It demonstrates along with the recent Supreme Court of Canada case in MiningWatch that Canadian courts are failing to grasp the importance of fully assessing projects that involve disruption of fish habitat so that they will be completed in a sustainable manner and failing to uphold legislative intent to do so in the face of incompatible departmental policies.  This is the second such case of failure in the sacred headwaters region of British Columbia this year.

This case appears as well in the context of proposed amendments to the Fisheries Act previously tabled in 2006 and 2007 that are to be tabled again this session and would also result in legally eliminating environmental assessments for all s. 35(2) authorizations by removing that section from the Law List Regulations under the CEAA.  If these amendments are passed, we may well find that letters of advice are discarded and authorizations again become the norm.  If so, it will represent an astonishing period of time (over a decade) during which the legislative intention of CEAA to assess projects that would disrupt fish habitat was successfully circumvented by DFO officials without meaningful judicial oversight.

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