Alberta Wilderness Association v. Canada (Attorney General), 2013 FCA 190 (2013)

Parts:Alberta Wilderness Association v. Canada (Attorney General)
Reporting Judge:PELLETIER J.A.
Docket Number:A-322-12
 
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Federal Court of Appeal - Alberta Wilderness Association v. Canada (Attorney General) [Anonymoused]

Source: http://decisions.fca-caf.gc.ca/en/2013/2013fca190/2013fca190.html

Date: 20130801

Docket: A-322-12

Citation: 2013 FCA 190

CORAM: PELLETIER J.A.

GAUTHIER J.A.

MAINVILLE J.A.

BETWEEN:

ALBERTA WILDERNESS ASSOCIATION,

WESTERN CANADA WILDERNESS COMMITTEE,

NATURE SASKATCHEWAN and

GRASSLANDS NATURALISTS

Appellants and

ATTORNEY GENERAL OF CANADA and

THE MINISTER OF THE ENVIRONMENT

Respondents

Heard at Vancouver, British Colombia, on March 19, 2013.

Judgment delivered at Ottawa, Ontario, on August 1, 2013.

REASONS FOR JUDGMENT BY: PELLETIER J.A.

CONCURRED IN BY: GAUTHIER J.A.

MAINVILLE J.A.

Date: 20130801

Docket: A-322-12

Citation: 2013 FCA 190

CORAM: PELLETIER J.A.

GAUTHIER J.A.

MAINVILLE J.A.

BETWEEN:

ALBERTA WILDERNESS ASSOCIATION,

WESTERN CANADA WILDERNESS COMMITTEE,

NATURE SASKATCHEWAN and

GRASSLANDS NATURALISTS

Appellants and

ATTORNEY GENERAL OF CANADA and

THE MINISTER OF THE ENVIRONMENT

Respondents

REASONS FOR JUDGMENT

PELLETIER J.A.

INTRODUCTION

[1] This is an appeal from an interlocutory order made by Scott J. (the Motion Judge) in the context of an application brought by Alberta Wilderness Association, Western Canada Wilderness Committee, Nature Saskatchewan, and Grasslands Naturalists (collectively, the appellants) seeking the Court’s assistance in relation to an emergency order pursuant to section 80 of the Species at Risk Act , S.C. 2002, c. 29 (the Act) and an amendment to the Recovery Strategy for the Greater Sage-grouse (the Recovery Strategy). As I understand it, the Notice of Application was drafted so as to request an order of mandamus if no recommendation for an emergency order has been made or for a judicial review of the decision declining to recommend the making of an emergency order, if such a decision has, in fact, been made. The problems inherent in this type of all purpose pleading have only been made worse by the Minister of the Environment’s (the Minister) position that he is under no obligation to say if a decision has been made or, if a decision has been made, what it is. At this point, the Notice of Application is stalled on an issue of document production which, on the view I take of this case, is premature and unnecessary.

FACTS AND PROCEDURAL HISTORY

[2] According to the appellants, the Sage-grouse is an endangered species whose Canadian habitat is limited to small areas in south-eastern Alberta and south-western Saskatchewan. Its current range is approximately 6% of its historic range. Between 1988 and 2006, the total Canadian population of Sage-grouse declined 88%. As of 2010, there were approximately 42 male Sage-grouse remaining in Saskatchewan at two active breeding grounds while, as of 2011, there were approximately 13 males remaining in Alberta out of a total Alberta population of 30 birds.

[3] The appellants say that the primary reason for the decline in the Sage-grouse population is the on-going loss or degradation of their habitat through oil and gas development, overgrazing, and cultivation.

[4] As of February 2012, the appellants estimated that Sage-grouse would no longer be found in Alberta within a year, and would no longer be found in Canada within 10 years, unless steps were taken to protect the existing birds and their habitat.

[5] Section 80 of the Act provides as follows:
80. (1) The Governor in Council may, on the recommendation of the competent minister, make an emergency order to provide for the protection of a listed wildlife species.

(2) The competent minister must make the recommendation if he or she is of the opinion that the species faces imminent threats to its survival or recovery.

(3) Before making a recommendation, the competent minister must consult every other competent minister.

80. (1) Sur recommandation du ministre compétent, le gouverneur en conseil peut prendre un décret d’urgence visant la protection d’une espèce sauvage inscrite.

(2) Le ministre compétent est tenu de faire la recommandation s’il estime que l’espèce est exposée à des menaces imminentes pour sa survie ou son rétablissement.

(3) Avant de faire la recommandation, il consulte tout autre ministre compétent.

[6] On November 23, 2011, the appellants wrote to the Minister to inform him that, in their view:

a) the Federal Government has enough information to identify further Sage-grouse habitat as “critical habitat”. Critical habitat is defined in the Act as “habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species critical habitat in the recovery strategy or in an action plan for the species”;

b) during the Minister’s delay in protecting critical habitat and in identifying (and protecting) additional critical habitat, populations of Sage-grouse in Canada have continued to decline;

c) the decline in the numbers of Sage-grouse is primarily the result of human caused disturbance, such as oil and gas development, within or near Sage-grouse habitat; and d) Sage-grouse will disappear from Alberta by 2013 and from all of Canada within the next decade unless conservation and protection measures are undertaken;

e) the governments of Alberta and Saskatchewan have failed to provide adequate or effective protection for Sage-grouse within their respective borders.

Appeal Book (A.B.), pages 38-39

[7] In the same letter, the appellants demanded that the Minister recommend an emergency order under section 80 of the Act. The appellants demanded as well that the Minister identify further critical habitat through an amendment to the Recovery Strategy, pursuant to paragraph 41(1)( c ) and subsection 45(1) of the Act. The appellants gave the Minister until January 16, 2012 to respond to their letter: see A.B. page 29.

[8] The appellants allege that, as of February 14, 2012, the Minister had failed or refused to do his duty under the Act, as set out in their letter of November 23, 2011.

[9] Accordingly, on February 14, 2012, the appellants commenced the application which gives rise to this appeal. In their Notice of Application, the appellants requested an order of mandamus in relation to the Minister’s failure to recommend an emergency order and to amend the Recovery Strategy, as well as judicial review of the Minister’s refusal to recommend an emergency order, to identify further critical habitat, and to amend the Recovery Strategy accordingly.

[10] This wide-ranging application concluded with a request, pursuant to Rule 317 of the Federal Courts Rules , SOR/98-106 (the Rules ), for production of documents. It is this request for production of documents which gives rise to this appeal.

[11] The Rule 317 request is made in the following terms:

The applicants request that the Minister send a certified copy of the following material that is not in the applicants’ possession but is in the Minister’s to the applicants and to the registry:

1. The record of materials before the Minister, Environment Canada and Parks Canada to the date of this application concerning the Minister’s duties under s.80 of the Species at Risk Act with respect to Sage-grouse in Canada;

2. If the Minister has refused to make a decision to recommend, or has made a decision not to recommend, an emergency order in relation to, or in response to, the letter of November 23, 2011 from the Applicants’ legal counsel, the record of materials before the Minister, Environment Canada and/or Parks Canada at the time the Minister made this refusal or decision and any written reasons for the Minister’s refusal or decision;

3. If the Minister has refused to identify further critical habitat for Sage-grouse in an amendment to the Recovery Strategy, or has made a decision not to identify further critical habitat in relation to, or in response to, the letter of November 23, 2011 from the Applicants’ legal counsel, the record of materials before the Minister, Environment Canada and/or Parks Canada at the time the Minister made this refusal or decision and any written reasons for the Minister’s refusal or decision; and 4. Such further and other material that may be in the possession, power, or control of the Minister, Environment Canada and/or Parks Canada and that may be relevant to these proceedings.

[12] On March...

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