Adam et al. v. Canada (Minister of the Environment) et al., 2011 FC 962

• Judge: Crampton, J.
• Court: Federal Court (Canada)
• Case Date: June 22, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 962;(2011), 395 F.T.R. 48 (FC)

Adam v. Can. (2011), 395 F.T.R. 48 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. AU.003

Allan Adam on His Own Behalf and On Behalf of All Other Members of Athabasca Chipewyan First Nation; Athabasca Chipewyan First Nation; Alphonse Lameman on His Own Behalf and on Behalf of All Other Members of Beaver Lake Cree Nation; Beaver Lake Cree Nation; Harry Sharphead on His Own Behalf and On Behalf of All Other Members of Enoch Cree Nation; and Enoch Cree Nation (applicants) v. Minister of the Environment and Attorney General of Canada (respondents)

(T-1437-10)

Alberta Wilderness Association; and Pembina Institute for Appropriate Development (applicants) v. Minister of the Environment and Attorney General of Canada (respondents)

(T-1439-10; 2011 FC 962)

Indexed As: Adam et al. v. Canada (Minister of the Environment) et al.

Federal Court

Crampton, J.

July 28, 2011.

Summary:

The applicants had attempted to persuade the Minister of the Environment to: (i) finalize a recovery strategy for boreal caribou located in northeastern Alberta; and (ii) recommend, pursuant to s. 80(2) of the Species at Risk Act (SARA), that the Governor in Council make an emergency order providing for the protection of those caribou. The applicants applied for, inter alia: 1. An order declaring that the Minister had failed to prepare a recovery strategy for the caribou within the time period mandated by s. 42(2) of SARA; 2. an order in the nature of mandamus compelling the Minister to comply with his duties under s. 80(2) of SARA; and 3. in addition or in the alternative, an order declaring that the Minister's failure to recommend that the Governor in Council make an emergency order to provide for the protection of the boreal caribou in northeastern Alberta was unlawful or unreasonable. Subsequent to filing the applications, the Minister explicitly declined to make a recommendation under s. 80(2), when he accepted a recommendation that he conclude that "there are no imminent threats to the national survival or recovery of boreal caribou in Canada" as contemplated by s. 80(2).

The Federal Court granted the application in part. The court set aside the Minister's decision and remitted the matter to him for reconsideration in accordance with the court's reasons. The court rejected the applicants' request for an order in the nature of mandamus. The applicants' request for an order declaring that the Minister had failed to prepare a Recovery Strategy for the listed species of woodland caribou (boreal population) within the time limit established by s. 42(2) of the SARA, was deferred until September 1, 2011.

Administrative Law - Topic 3510

Judicial review - Mandamus - General - Review of exercise of discretionary power - The applicants applied for an order in the nature of mandamus compelling the Minister of the Environment to comply with his duties under s. 80(2) of Species at Risk Act (SARA), and an order declaring that the Minister's failure to recommend that the Governor in Council make an emergency order to provide for the protection of the boreal caribou in northeastern Alberta was unlawful or unreasonable - The Federal Court set aside the Minister's decision and remitted the matter to him for reconsideration - However, the court declined to grant an order in the nature of mandamus compelling the Minister to make a recommendation under s. 80(2) of the SARA - Section 80(2) contemplated the making of a decision by the Minister that was discretionary in nature - The principle that mandamus was not available to compel the exercise of a discretion in a particular way applied - The "factual concessions" made by the Minister, together with the other evidence in the certified record, were not such that the only reasonable conclusion available to the Minister was that there were imminent threats to the recovery of boreal caribou - See paragraphs 53 to 57.

Administrative Law - Topic 3705

Judicial review - Mandamus - Mandamus to government and executive - Ministers of the Crown - [See Administrative Law - Topic 3510 ].

Animals - Topic 4204

Species at risk (incl. marine animals) - General - Interpretation of legislation - The applicants applied for an order in the nature of mandamus compelling the Minister of the Environment to comply with his duties under s. 80(2) of Species at Risk Act (SARA), and an order declaring that the Minister's failure to recommend that the Governor in Council make an emergency order to provide for the protection of the boreal caribou in northeastern Alberta was unlawful or unreasonable - The Federal Court held that the Minister erred by failing to take into account the First Nations applicants' treaty rights and the honour of the Crown in interpreting his mandate under s. 80(2) - The decision warranted being set aside on that basis alone - Additional support for that conclusion was provided by the principles that: (i) "any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians"; and (ii) "any limitations which restrict the rights of Indians under treaties must be narrowly construed" - The court stated that "In reconsidering his decision, the Minister should not confine his consideration of the honour of the Crown to an assessment of whether any active course of conduct may negatively affect treaty rights of the First Nations. ... such an approach would present an impoverished view of the honour of the Crown. A broader view is required to be taken. This includes assessing the extent to which the ongoing violation of the SARA (by failing to post a Recovery Strategy) and continued inaction with respect to the boreal caribou would, in all of the circumstances ... be consistent with the honour of the Crown" - See paragraphs 30 to 36.

Animals - Topic 4224

Species at risk (incl. marine animals) - Recovery of endangered, threatened and extirpated species - Emergency order - Sections 80(1) and (2) of the Species at Risk Act (SARA) provided that "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" - The applicants submitted that "recovery" should be interpreted as whatever "recovery" was defined to mean in any final Recovery Strategy that had been posted on the public registry in respect of any particular species - The Federal Court stated that this submission was inconsistent with the applicants' position, which it accepted, that the emergency power established in s. 80(1) could be exercised pending the completion of such final recovery strategies - For that reason, it would not be reasonable to confine the meaning of "recovery" in s. 80(2) to whatever that word had been defined to mean in any final Recovery Strategy that had been posted in respect of any particular species - However, any recovery objectives that were identified in any draft Recovery Strategy which may have been issued in respect of a particular species were relevant factors that should be considered by the Minister in reaching an opinion under s. 80(2) - A failure to reach an opinion that was consistent with such draft recovery objectives would not render the opinion unreasonable - Rather, this was one factor to consider in determining whether the Minister's opinion was reasonable - See paragraphs 41 to 42.

Animals - Topic 4224

Species at risk (incl. marine animals) - Recovery of endangered, threatened and extirpated species - Emergency order - The Federal Court stated that "To the extent that the Applicants are suggesting that any time the survival or recovery of any herd or particular group of any listed species, or a sub-species or individual population thereof, is threatened in any area of its range or habitat, the Minister is required to make a recommendation for an emergency protective order under subsection 80(2) [of the Species at Risk Act], I respectfully disagree. In my view, this interpretation of subsection 80(2) is not supported by the plain language of that provision. The operative words in that provision are 'is of the opinion that the species faces imminent threats to its survival or recovery'. The species in question is the 'listed wildlife species' referred to in subsection 80(1). There is no mention of herds or other local populations of species or subspecies in subsection 80(2)" - The Minister was not required to make a recommendation for an emergency order under s. 80(2) unless he or she came to the opinion that the listed species in question faced imminent threats to its survival or recovery - See paragraphs 45 to 47.

Animals - Topic 4224

Species at risk (incl. marine animals) - Recovery of endangered, threatened and extirpated species - Emergency order - The applicants applied for an order in the nature of mandamus compelling the Minister of the Environment to comply with his duties under s. 80(2) of Species at Risk Act (SARA), and an order declaring that the Minister's failure to recommend that the Governor in Council make an emergency order to provide for the protection of the boreal caribou in northeastern Alberta was unlawful or unreasonable - The Federal Court held that the Minister erred in failing to provide a meaningful explanation for how he reached his conclusion not to recommend an emergency order - Notwithstanding the substantial scientific and other evidence that was discussed and that contradicted the overall conclusion reached by the Minister, the Minister concluded that there were no imminent threats to the national recovery of boreal caribou in Canada - The short reasons provided for the conclusion reached by the Minister did not enable the court to conduct a meaningful review - Accordingly, the decision had to be set aside - See paragraphs 58 to 69.

Animals - Topic 4229

Species at risk (incl. marine animals) - Recovery of endangered, threatened and extirpated species - Judicial review - The applicants applied for an order in the nature of mandamus compelling the Minister of the Environment to comply with his duties under s. 80(2) of Species at Risk Act (SARA), and an order declaring that the Minister's failure to recommend that the Governor in Council make an emergency order to provide for the protection of the boreal caribou in northeastern Alberta was unlawful or unreasonable - The Federal Court stated that "The First Nations Applicants have raised serious issues with respect to the impact of the Minister's interpretation of subsection 80(2) on their treaty rights and the honour of the Crown. Accordingly, in my view, the standard of review applicable to the Minister's interpretation of subsection 80(2) is correctness, at least insofar as his interpretation implicates those issues. ... there are good reasons why the 'usual' approach of applying a reasonableness standard of review to the Minister's interpretation of his statutory mandate should apply to other aspects of his interpretation of the language in subsection 80(2). The issue of whether the Minister erred in failing or refusing to recommend an emergency order under subsection 80(2), by failing to consider relevant factors, is an issue of mixed fact and law that is reviewable on a standard of reasonableness"- See paragraphs 25 to 29.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - [See Animals - Topic 4204 ].

Indians, Inuit and Métis - Topic 5

General - Interpretation of legislation - [See Animals - Topic 4204 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 25].

Celgene Corp. v. Canada (Attorney General, [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 25].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160, 412 N.R. 66; 2011 SCC 7, refd to. [para. 25].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 26].

Little Salmon/Carmacks First Nation et al. v. Beckman et al., [2010] 3 S.C.R. 103; 408 N.R. 281; 295 B.C.A.C. 1; 501 W.A.C. 1; 2010 SCC 53, refd to. [para. 26].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 32].

R. v. Horseman, [1990] 1 S.C.R. 901; 108 N.R. 1; 108 A.R. 1, refd to. [para. 33].

R. v. Sundown (J.), [1999] 1 S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 34].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 36].

Willson et al. v. British Columbia et al., [2010] B.C.T.C. Uned. 359; 2010 BCSC 359, refd to. [para. 36].

West Moberly First Nations v. British Columbia (Ministry of Energy, Mines and Petroleum Resources) - see Willson et al. v. British Columbia et al.

Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2010), 379 F.T.R. 183; 2010 FC 1233, dist. [para. 40].

David Suzuki Foundation v. British Columbia (Minister of Fisheries & Oceans) - see Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al.

Environmental Defence Canada et al. v. Canada (Minister of Fisheries and Oceans) (2009), 349 F.T.R. 225; 2009 FC 878, dist. [para. 40].

Campbell et al. v. Canada (Chief Electoral Officer) (2011), 413 N.R. 248; 2011 FCA 74, refd to. [para. 54].

Canada (Chief Electoral Officer) v. Callaghan - see Campbell et al. v. Canada (Chief Electoral Officer).

St. Brieux (Town) et al. v. Canada (Minister of Fisheries and Oceans) et al. (2010), 370 F.T.R. 8; 2010 FC 427, refd to. [para. 54].

Trinity Western University et al. v. College of Teachers (B.C.) et al., [2001] 1 S.C.R. 772; 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161, dist. [para. 55].

Ragupathy v. Canada (Minister of Citizenship and Immigration) (2007), 350 N.R. 137; 2006 FCA 151, refd to. [para. 68].

Law Society of Upper Canada v. Neinstein (2010), 259 O.A.C. 313; 2010 ONCA 193, refd to. [para. 68].

Clifford v. Ontario (Attorney General) et al. (2009), 256 O.A.C. 354; 2009 ONCA 670, refd to. [para. 68].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 68].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 68].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 69].

Statutes Noticed:

Species at Risk Act, S.C. 2002, c. 29, sect. 80(1), sect. 80(2) [para. 13].

Authors and Works Noticed:

Canada, Senate and House of Commons Debates, Standing Committee on Environment and Sustainable Development, 1 st Sess., 37 th Parliament (2002), p. 1150 [paras. 39, 41].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 69].

Counsel:

Sean Nixon and David Rosenberg, for the applicants Athabasca Shipewyan First Nations, Beaver Lake Cree Nation and Enoch Cree Nation;

Mark Kindrachuk, for the respondent;

Devon Page and Melissa Gorrie, for the applicants, Alberta Wilderness Association et al.

Solicitors of Record:

Devon Page and Melissa Gorrie, Toronto, Ontario, for the applicants;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on June 22, 2011, at Edmonton, Alberta, before Crampton, J., of the Federal Court, who delivered the following judgment on July 28, 2011.