Alberta Wilderness Association et al. v. Canada (Minister of the Environment), (2009) 349 F.T.R. 63 (FC)

• Judge: Zinn, J.
• Court: Federal Court (Canada)
• Case Date: July 09, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 349 F.T.R. 63 (FC);2009 FC 710

Alta. Wilderness Assoc. v. Can. (2009), 349 F.T.R. 63 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. JL.019

Alberta Wilderness Association, Federation of Alberta Naturalists, Grasslands Naturalists, Nature Saskatchewan and Western Canada Wilderness Committee (applicants) v. Minister of Environment (respondent)

(T-241-08; 2009 FC 710)

Indexed As: Alberta Wilderness Association et al. v. Canada (Minister of the Environment)

Federal Court

Zinn, J.

July 9, 2009.

Summary:

The Minister of the Environment posted a "Recovery Strategy for the Greater Sage-Grouse (Centrocercus urophasianus urophasianus) in Canada" under the Species at Risk Act. The applicants, non-profit environmental and natural history organizations, applied for judicial review, complaining that the Recovery Strategy failed to identify any "critical habitat" for the Greater Sage-Grouse.

The Federal Court allowed the application because the Minister's decision, to the extent that it failed to identify any critical habitat, was unreasonable.

Animals - Topic 4204

Species at risk (e.g. endangered animals) - General - Interpretation of legislation - The Species at Risk Act (SARA) prescribed a two step recovery planning process for endangered species - The first step was the preparation and posting of a recovery strategy and the second step was the development and posting of an action plan to implement the recovery strategy - Section 41(1) of the SARA set out the content of a recovery strategy once the Minister had determined that recovery of the species was feasible - Subsection 41(1)(c) provided that the recovery strategy had to include an identification of the species' critical habitat, to the extent possible, based on the best available information - The Federal Court agreed with the parties that "There is no discretion vested in the Minister in identifying critical habitat under the SARA. Subsection 41(1)(c) requires that the Minister identify in a recovery strategy document as much critical habitat as it is possible to identify at that time, even if all of it cannot be identified, and to do so based on the best information then available ..." - See paragraph 25.

Animals - Topic 4223

Species at risk (e.g. endangered animals) - Recovery of endangered, threatened and extirpated species - Recovery strategy - The Minister of the Environment posted a "Recovery Strategy for the Greater Sage-Grouse (Centrocercus urophasianus urophasianus) in Canada" under the Species at Risk Act (SARA) - The applicants, non-profit environmental and natural history organizations, applied for judicial review, complaining that the Recovery Strategy failed to identify any "critical habitat" for the Greater Sage-Grouse as required by s. 41(1)(c) of the SARA - The Federal Court allowed the application because the Minister's decision, to the extent that it failed to identify any critical habitat, was unreasonable - At the time the Recovery Strategy was drafted and posted, some critical habitat could have been identified - See paragraphs 40 to 74.

Cases Noticed:

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201; 2001 SCC 40, refd to. [para. 25].

Abbott Laboratories Ltd. v. Canada (Attorney General) et al. (2008), 329 F.T.R. 190; 67 C.P.R.(4th) 51; 2008 FC 700, refd to. [para. 30].

Armstrong v. Canada (Attorney General), [2005] F.T.R. Uned. 613; 2005 FC 1013, refd to. [para. 30].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 33].

Canadian Tire Corp. v. Canadian Bicycle Manufacturers Association et al. (2006), 346 N.R. 186; 2006 FCA 56, refd to. [para. 34].

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; 291 D.L.R.(4th) 577; 2008 SCC 9, refd to. [para. 45].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 46].

Statutes Noticed:

Species at Risk Act, S.C. 2002, c. 29, sect. 41(1) [para. 9]; sect. 41(1)(c) [para. 25].

Counsel:

Keith Ferguson and Devon Page, for the applicants;

Erin Tully and Banafsheh Sokhansanj, for the respondent.

Solicitors of Record:

Ecojustice Canada - Head Office, Vancouver, British Columbia, for the applicants;

John H. Sims, Q.C., Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application was heard in Vancouver, British Columbia, on June 2-4, 2009, before Zinn, J., of the Federal Court, who delivered the following decision on July 9, 2009.