Canada (Fisheries and Oceans) v. David Suzuki Foundation, 2012 FCA 40 (2012)

Parts:Canada (Fisheries and Oceans) v. David Suzuki Foundation
Reporting Judge:NADON J.A.
Docket Number:A-2-11
 
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Federal Court of Appeal - Canada (Fisheries and Oceans) v. David Suzuki Foundation [Anonymoused]

Source: http://decisions.fca-caf.gc.ca/en/2012/2012fca40/2012fca40.html

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Federal Court of Appeal

Cour d'appel fédérale

Date: 20120209

Docket: A-2-11

Citation: 2012 FCA 40

CORAM: NADON J.A.

SHARLOW J.A.

MAINVILLE J.A.

BETWEEN:

MINISTER OF FISHERIES AND OCEANS

Appellant and

DAVID SUZUKI FOUNDATION, DOGWOOD INITIATIVE,

ENVIRONMENTAL DEFENCE CANADA, GEORGIA STRAIT ALLIANCE, GREENPEACE CANADA , INTERNATIONAL FUND FOR ANIMAL

WELFARE, RAINCOAST CONSERVATION SOCIETY, SIERRA CLUB

OF CANADA and WESTERN CANADA WILDERNESS COMMITTEE

Respondents

Heard at Vancouver , British Columbia , on November 30, 2011.

Judgment delivered at Ottawa , Ontario, on February 9, 2012.

REASONS FOR JUDGMENT BY: MAINVILLE J.A.

CONCURRED IN BY: NADON J.A.

SHARLOW J.A.

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Federal Court of Appeal

Cour d'appel fédérale

Date: 20120209

Docket: A-2-11

Citation: 2012 FCA 40

CORAM: NADON J.A.

SHARLOW J.A.

MAINVILLE J.A.

BETWEEN:

MINISTER OF FISHERIES AND OCEANS

Appellant and

DAVID SUZUKI FOUNDATION, DOGWOOD INITIATIVE,

ENVIRONMENTAL DEFENCE CANADA , GEORGIA STRAIT ALLIANCE , GREENPEACE CANADA , INTERNATIONAL FUND FOR ANIMAL

WELFARE, RAINCOAST CONSERVATION SOCIETY, SIERRA CLUB

OF CANADA and WESTERN CANADA WILDERNESS COMMITTEE

Respondents

REASONS FOR JUDGMENT

MAINVILLE J.A.

[1] The Minister of Fisheries and Oceans (“Minister”) is appealing a judgment of the Federal Court cited as 2010 FC 1233 (“Reasons”) in which Russell J. (“Federal Court judge”) declared that ministerial discretion does not “legally protect” critical habitat under section 58 of the Species at Risk Act , S.C. 2002, c. 29 (“SARA”) and which further declared that it was unlawful for the Minister to have cited discretionary provisions of the Fisheries Act , R.S.C. 1985, c. F-14 in a protection statement concerning the critical habitat of the Northeast Pacific Northern and Southern populations of killer whales.

[2] Subsection 58(5) of the SARA provides that the Minister must make an order under subsections 58(1) and (4) protecting the critical habitat of listed endangered or threatened aquatic species if such critical habitat “is not legally protected by provisions in, or measures under, this or any other Act of Parliament”. The Minister had determined that the Fisheries Act legally protected some aspects of the critical habitat of killer whales and could thus be resorted to as a substitute to a protection order under the SARA.

[3] The Federal Court judge ruled that the Minister may avoid issuing a critical habitat protection order under the SARA only where the legal protection offered that habitat under another Act of Parliament is the same as that provided under a protection order. He further ruled that the measures available to the Minister under the Fisheries Act could be diluted under the sweeping and largely unfettered discretions granted to the Minister under that statute. Consequently, he concluded that the Fisheries Act could not be resorted to as a substitute to a critical habitat protection order under the SARA.

Overview of conclusions

[4] The Minister is appealing to this Court on two main grounds.

[5] The first ground of appeal concerns the standard of review. The Minister submits that Parliament made him responsible for the administration of the regulatory schemes of the SARA and of the Fisheries Act ; hence, his interpretation of their provisions is entitled to deference. The Minister bases that submission on a judgment rendered fairly recently by the Supreme Court of Canada: Dunsmuir v. New Brunswick , 2008 SCC 9, [2008] 1 S.C.R. 190 (“ Dunsmuir ”). That judgment emphasized the deference owed to an administrative tribunal when it interprets a provision of its enabling (or “home”) statute or statutes closely related to its functions.

[6] In my view, no deference is owed to the Minister as to the interpretation of the relevant provisions of the SARA or of the Fisheries Act . The Minister’s interpretation of the Supreme Court’s most recent pronouncements is erroneous as it fails to consider the context in which they were developed and the reasons which may warrant deference to an administrative tribunal when it interprets its enabling statute. The reasonableness standard of review does not apply to the interpretation of a statute by a minister responsible for its implementation unless Parliament has provided otherwise. I thus conclude – as did the Federal Court judge in this case – that where an application for judicial review of a decision as to the implementation of the SARA is based on an allegation that the Minister has misinterpreted a provision of the SARA – or of the Fisheries Act as it relates to the SARA – the Minister’s interpretation must be reviewed on a standard of correctness. The courts owe no deference to the Minister in that respect.

[7] The second ground of appeal concerns the interpretation of the SARA. The Minister does not dispute that the protection of critical habitat under the SARA is compulsory. However, the Minister submits that Parliament intended that there should be some flexibility as to the modalities of that compulsory protection. The Minister states that he does not wish to retain discretion under the Fisheries Act to undermine that protection or to provide protection which is inferior to that afforded under a SARA protection order. Rather, the Minister submits that certain measures under the Fisheries Act do protect critical habitat against destruction, and that he should therefore be able to resort to such measures as alternatives to a SARA protection order even though they might be subject to his discretion.

[8] I do not accept the Minister’s interpretation of the SARA on this point. When Parliament adopted section 58 of the SARA, its intent was to provide for compulsory and non-discretionary legal protection from destruction for the identified critical habitat of listed endangered or threatened aquatic species. This protection can be achieved through a provision or measure under an Act of Parliament which legally protects from destruction that habitat and which is not subject to dilution through discretionary ministerial action. In the absence of such a legally enforceable provision or measure, the Minister must make a protection order under subsections 58(1) and (4) of the SARA to ensure the protection of that habitat.

[9] While the Minister submits that, by retaining his discretion under the Fisheries Act , he does not intend to undermine the protection provided under the SARA or to provide protection that is inferior to that available under a SARA protection order, he fails to explain how his discretion under the Fisheries Act would be legally fettered. Parliament adopted section 58 of the SARA precisely to avoid the destruction of the identified critical habitat of listed endangered and threatened aquatic species though any means. If the Minister’s position were accepted, the compulsory and non-discretionary protection scheme set out by Parliament under the SARA would be transformed into a protection scheme largely subject to ministerial discretion. Such was not Parliament’s intent in adopting the SARA.

[10] However – and contrary to the conclusions of the Federal Court judge in this case – there may be circumstances in which the Minister may rely on section 36 of the Fisheries Act (which I take to include regulations made under that section) in a protection statement made under paragraph 58(5)( b ) of the SARA. Section 36 of the Fisheries Act prohibits the deposit of deleterious substances in water frequented by fish, unless such deposit is authorized under regulations adopted by the Governor in Council. In a given case, the combined operation of section 36 of the Fisheries Act and of its regulations may afford a particular endangered or threatened species the legal protection mandated by section 58 of the SARA. In such a case, it may be appropriate for the Minister to rely on those provisions for the purposes of paragraph 58(5)( b ) of the SARA.

[11] However, in this case, the record contains no evidence as to the effect, if any, of section 36 and its regulations on the killer whale critical habitat at issue. Therefore, there was no basis in these proceedings upon which the Federal Court judge could have determined whether the Minister’s reliance on section 36 could have been justified in light of the provisions of section 58 of the SARA.

Overview of the provisions of the Species at Risk Act relevant to this appeal

[12] The SARA was assented to in 2002 as the first comprehensive federal legislation seeking (a) to prevent wildlife species from being extirpated or becoming extinct and (b) to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity. That legislation was adopted partly to meet Canada ’s obligations under the United Nations Convention on the Conservation of Biological Diversity. Some of the relevant provisions of the SARA are reproduced in a schedule to these reasons.

[13] The SARA identifies different categories of species at risk and distinguishes between extirpated species, endangered species, threatened species and species of special concern. For the purposes of this appeal, we need only concern ourselves with the scheme pertaining to listed endangered and threatened aquatic species.

[14] An endangered species is a wildlife species...

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