[2010] F.C.J. No. 1471

2010 FC 1233

Federal Court Vancouver, British Columbia

Russell J.

December 7, 2010

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 Protection Statement cited the following non-statutory instruments: code of conduct and outreach initiatives; whale-watching guidelines; a statement of practice with respect to mitigation of seismic sound in the marine environment; sensitive benthic areas policy; wild salmon policy; integrated fisheries management plans; and military sonar protocols. The Protection Statement also cited legislative tools that the Department of Fisheries and Oceans (“DFO”) might use in the future to protect the critical habitat. The applicants claimed that the Protection Statement incorrectly described the s.58 legal duty to protect critical habitat as being limited to the protection of the “geophysical attributes” of the critical habitat. They alleged that the DFO erred in issuing a Protection Statement that relied on non-binding policy, prospective legislation and Ministerial discretion. With respect to the Protection Order application, the applicants challenged the DFO’s practice of limiting the application and scope of s.58 of SARA to protect only geospatial areas and/or geophysical elements of the critical habitat.

The court held that the Minister of Fisheries and Oceans erred in issuing a Protection Statement that relied upon policy and other non-statutory instruments, prospective laws and Ministerial discretion under the Fisheries Act. The court also held that the Ministers had acted unlawfully in limiting the application and scope of the Protection Order to provide protection for geophysical parts of the critical habitat only. Under s.58 of SARA there was a duty to provide legal protection against destruction for all components of the critical habitat. It was unlawful to exclude ecosystem features of the critical habitat, including availability of prey for the resident killer whales and acoustic and environmental factors from the scope of the Protection Order. The Ministers failed to respond to the duty assigned to them by SARA to protect the critical habitat of species at risk. The court held that the Minister had no discretion to choose to give critical habitat any lesser protection against destruction than the protection provided through a s.58(4) Protection Order.

The court rejected the argument by the Ministers that the Minister could choose between a Protection Order and a Protection Statement provided there were provisions under SARA or any other Act to protect the critical habitat in question. The court held that a plain language interpretation of s.58(5)(b) of SARA confirmed that any provision cited in the Protection Statement should be a law or regulation as opposed to a policy or guideline. It was inappropriate to include plans for future legal protection only. Any provisions that relied on the prospective exercise of legislative authority did not legally protect the critical habitat until that authority was actually exercised. The court found that SARA’s purpose was to provide protection for the critical habitat in such a way that those protections could not be set aside or modified through the exercise of Ministerial discretion at some time in the future. The court held that the Protection Statement was unlawful because it was intended to provide legal protection for only certain components of the critical habitat and failed to prevent the most significant threats to critical habitat: reduction in prey availability, toxic contamination and physical and acoustic disturbance.