Earlier in 2009, as discussed in the Sage Grouse decision reported in our previous issue, the Federal Court held that the Species at Risk Act (SARA) requires the Minister of the Environment to identify critical habitat of a listed endangered species. This was reaffirmed in Environmental Defence Canada v. Canada (Minister of Fisheries and Oceans), a case dealing with the Nooksack Dace, a minnow listed under SARA.

Section 41(1)(c) of SARA provides that the Minister’s Final Recovery Strategy for an endangered species must address the threats of survival of the species and include an identification of the species' critical habitat and examples of activities that were likely to result in its destruction.

While the Minister had originally included information regarding the critical habitat of the Nooksack Dace in its Final Recovery Strategy, it had later removed this information and inserted it into a separate document for the purposes of subjecting the information to scientific peer review. In doing so, the Minister had deferred the identification of critical habitat for the Nooksack Dace until a later date.

The court held that s. 41(c) of SARA imposes a mandatory requirement on the Minister to identify critical habitat, and that the Minister enjoys no discretion with respect to this determination. The court rejected the Minister’s argument that the requirement to identify a critical habitat under SARA only arises where the available scientific information is determined by the Minister to be “adequate” for this purpose.

The court held that this position ran afoul of the precautionary principle (which states that a lack of scientific certainty should not be used as a pretext for postponing measures to prevent environmental degradation), as codified in s. 38 of SARA. The court further held that the Minister’s position was not consistent with the United Nations Convention on the Conservation of Biological Diversity, which Canada has ratified. The Minister acted contrary to law by failing to meet the mandatory requirements of SARA. The Court struck the portion of the Final Recovery Strategy dealing with the issue of critical habitat.

As a result of this decision, the Minister must consider habitat as part of the protection of endangered species, even when there is incomplete scientific information and certainty. The decision on the Nooksack Dace further demonstrates that the courts will consider and apply the provisions of SARA. Although a relatively new piece of legislation, the courts in Canada have not hesitated to enforce its provisions and ensure total compliance.