David Suzuki Foundation c. Canada (Fisheries and Oceans), 2010 FC 1233 (2010)

Conférencier:The Honourable Mr. Justice Russell
Numéro de Registre:T-541-09, T-1552-08
Parties:David Suzuki Foundation c. Canada (Fisheries and Oceans)

Federal Court - David Suzuki Foundation v. Canada (Fisheries and Oceans)

Source: http://decisions.fct-cf.gc.ca/en/2010/2010fc1233/2010fc1233.html

Federal Court

Cour fédérale

Date: 20101207

Docket: T-541-09

Citation: 2010 FC 1233

Ottawa, Ontario , December 7, 2010

PRESENT: The Honourable Mr. Justice Russell









Applicants and






Procedural History and Parties . 4

Southern and Northern Resident Killer Whales . 6

Listing and Recovery Planning for the Resident Killer Whales . 7

Recovery Strategy Identifies Critical Habitat 10 180 Days Later, DFO Must Protect Critical Habitat 11

Applications for Judicial Review .. 12

Consolidation . 15



Applicants’ Arguments on Standard of Review .. 24

Respondents’ Arguments . 25

Appropriate Standard of Review .. 26


The Applicants . 27

The Court should exercise its discretion to hear first moot application . 27

Hearing a moot application . 28

Minister’s duty . 29

Recovery Strategy . 30

Protection Statement 31

Protection Statement is unlawful 31

Fisheries Act 35

Canadian Environmental Assessment Act 36

Provincial laws are not laws of Parliament 36

Protection Statement fails to protect all components . 37

Protection Order . 38

Interpretation of section 58 . 38

Bilingual interpretation . 38

The Case of Environmental Defence . 41

Unlawful limitation of the scope of the Protection Order . 42

The Respondents . 44

Court should not exercise its jurisdiction . 44

Protection Statement 46

Protection Order application is misguided . 49

Future intentions . 52

Lack of jurisdiction . 53

Improper submissions . 54

Applicants’ Reply . 54


General introduction . 57

Protection Order application . 60

Respondents’ grounds . 61

Application is misguided . 61

Order cannot be challenged . 62

Order cannot be more than it is . 67

Attempt to review speculated future intentions . 69

Applicants cannot obtain the declaration sought 74

Protection Statement application . 84

Should the Court hear it? . 84

Adversarial context 86

Judicial economy . 88

Merits of Protection Statement application . 91

Protection Statement 91

Disagreement between the Parties . 92

Legal requirements of a Protection Statement 104

Plain language interpretation of subsection 58(5)( b ) 105

Role of a Protection Statement within the SARA scheme . 106

Intention of Parliament – Habitat protection must be mandatory and meaningful 107

Protection Statement unlawfully includes non-statutory instruments . 107

Protection Statement unlawfully cites possible future provisions . 108

Protection Statement unlawfully relies on ministerial discretion . 110

Fisheries Act and Regulations . 111

Canadian Environmental Assessment Act 120

Provincial laws are not laws of Parliament 121

Protection Statement fails to set out how all components of critical habitat are legally protected 121

Conclusions . 122


[1] At issue are two consolidated applications for judicial review to challenge related decisions. The first application (Protection Statement Application) challenges the Minister of Fisheries and Oceans’ Northern and Southern Resident Killer Whales (Orcinus orca) in Canada: Critical Habitat Protection Statement (Protection Statement), which was issued pursuant to subsection 58(5)( b ) of the Species at Risk Act , S.C. 2002, c. 29 (SARA, or the Act) on September 10, 2008 .

[2] The second application (Protection Order Application) challenges a protection order made in February 2009 by the Minister of Fisheries and Oceans and the Minister of the Environment (Ministers) to limit the scope of the Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order (Protection Order), made pursuant to subsection 58(5)( a ) of SARA.


Procedural History and Parties

[3] These two consolidated applications for judicial review are concerned with the Respondents’ obligations under section 58 of SARA to provide legal protection for the critical habitat of two populations of killer whales.

[4] The first application challenges the September 10, 2008 decision of the Minister of Fisheries and Oceans to issue the Protection Statement pursuant to subsection 58(5)( b ) of SARA.

[5] The second application challenges the February 2009 decision made jointly by the Minister of Fisheries and Oceans and the Minister of the Environment to issue the Protection Order under subsections 58(4) and (5) of SARA. Specifically, it challenges the Respondents’ decision to limit the scope of the Protection Order such that it applies only to geospatial areas or geophysical attributes of critical habitat.

[6] The nine Applicants are non-profit environmental organizations from across Canada . They each have a genuine interest in the survival and recovery of the Resident Killer Whales and in the interpretation and application of SARA. The Respondents do not contest the Applicants’ public interest standing before this Court.

[7] The Respondent Minister of Fisheries and Oceans is charged with the duty to protect the critical habitat of any aquatic species, including the Resident Killer Whales.

[8] The Respondent Minister of the Environment, as the Minister responsible for the Parks Canada Agency, is charged with the duty to protect critical habitat on federal lands administered by Parks Canada, tiny portions of which overlap with the Resident Killer Whales’ critical habitat at issue in this proceeding.

Southern and Northern Resident Killer Whales

[9] Two distinct populations of killer whales, known as the northern residents and the southern residents (and herein jointly referred to as the Resident Killer Whales) occupy the waters off the west coast of British Columbia .

[10] The southern Resident Killer Whale is an endangered species. Section 2 of SARA defines an “endangered species” as “a wildlife species that is facing imminent extirpation or extinction.”

[11] The northern Resident Killer Whale is a threatened species. Section 2 of SARA defines a “threatened species” as “a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction.”

[12] The Resident Killer Whale populations are considered at risk because of their small population size and low reproductive rate as well as their exposure to a variety of human-caused threats to both the whales and their habitat. These threats have the potential to prevent their recovery or to cause further declines in population. Principal among these anthropogenic threats are reductions in the availability of salmon prey (i.e. food), environmental contamination and physical and acoustic disturbance.

Listing and Recovery Planning for the Resident Killer Whales

[13] SARA prescribes a process whereby species at risk are listed and given legal protections, with the objective of ensuring recovery of the species back to healthy population levels. To achieve this objective, a recovery strategy is developed and implemented for each species listed as endangered or threatened. Central to the recovery process is the identification and protection of the species’ critical habitat.

[14] Pursuant to the mandatory timelines under section 42(2) of SARA, the Department of Fisheries and Oceans (DFO) was required to include a proposed recovery strategy for the Resident Killer Whales on the public registry by June 5, 2006. The SARA public registry is established under section 120 for the purpose of facilitating access to documents relating to matters under the Act.

[15] In 2004, DFO convened the Resident Killer Whale Recovery Team (Recovery Team). The Recovery Team, made up of leading independent and governmental experts, was tasked with creating a recovery strategy for the Resident Killer Whales in accordance with SARA.

[16] Over the next year, the Recovery Team met periodically to develop the recovery strategy. The Recovery Team was instructed to identify the critical habitat of the Resident Killer Whales as well as examples of activities likely to destroy critical habitat.

[17] At meetings and in electronic communications, the Recovery Team discussed the biological or ecosystem features of critical habitat. The discussion of biological features of critical habitat focused on the association between salmon abundance and the use of an area by Resident Killer Whales, as well as the acoustic and environmental quality of critical habitat.

[18] The first draft of the recovery strategy was completed on March 15, 2005. It identified critical habitat as well as threats to both the “abiotic” (i.e. geophysical) and “biotic” (i.e. biological) features of critical habitat.

[19] Following extensive review and comment, a final draft recovery strategy was completed for submission to the Minister of Fisheries and Oceans on May 15, 2006 (May 2006 Draft Recovery Strategy). The May 2006 Draft Recovery Strategy identified critical habitat as a set of physical and biological features occurring at a specific geospatial location. It also identified threats to those features.

[20] The May 2006 Draft Recovery Strategy was never delivered to the Minister. Instead, in August 2006, the Recovery Team was informed that the May 2006 Draft Recovery Strategy had been edited and that information identifying critical habitat had been removed pursuant to DFO policy.

[21] A lengthy dispute followed between members of the Recovery Team and DFO bureaucrats. In March 2007, the critical habitat section of the May 2006 Draft Recovery Strategy was reinstated.

[22] In May 2007, the now-restored document was again sent...

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