The July 2009 decision of Federal Court Justice Zinn in AWA v. Minister of Environment was met with great enthusiasm from environmental groups because it set a precedent for using the Species at Risk Act (“SARA”) to compel judicial review of environmental policy.

Under SARA, the Federal Environment Minister (the “Minister”) must prepare a Species Recovery Strategy (the “Strategy”) for listed endangered species. In bringing this application, the environmental groups (the “AWA”) correctly identified that the Minister’s Strategy for the Greater Sage Grouse (“Grouse”) was inadequate because it failed to designate habitat “which is necessary for the survival or recovery of a listed wildlife species” (“Critical Habitat”).

After clarifying and affirming that SARA creates a “mandatory statutory duty” for the Minister to identify the “species’ critical habitat, to the extent possible, based on the best available information”, Justice Zinn found that, “if any critical habitat is identifiable, the Minister must identify it in the recovery strategy”. Effectively, the Minister has no discretion in this matter.

The essence of the judgment was that the Minister’s failure to designate any Critical Habitat in the Strategy was unreasonable. Quoting from Dunsmuir v. New Brunswick, Justice Zinn reasoned that the Minister’s decision “fell ‘outside a range of possible, acceptable outcomes which are defensible in respect of the facts and law’ ”.

The inclusion of Critical Habitat in a Strategy is essential because it is the only major component of an endangered species recovery planning process with a mandatory timeline. Justice Zinn confirmed AWA’s observation that failure to identify Critical Habitat in the Strategy leaves the endangered species at risk.

Justice Zinn found that as “much of it is without objection”, the Strategy will remain in place but the Critical Habitat provision must be remedied. The AWA was invited to make submissions as to appropriate changes.

As the Canadian Grouse habitat is located in Alberta and Saskatchewan, the revised policy may have implications for oil and gas producers in affected regions. Interested parties should familiarize themselves with the new Strategy when it becomes available.