Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al., (2012) 427 N.R. 110 (FCA)

• Judge: Nadon, Sharlow and Mainville, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 30, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2012), 427 N.R. 110 (FCA);2012 FCA 40

Georgia Strait Alliance v. Can. (2012), 427 N.R. 110 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2012] N.R. TBEd. MR.001

Minister of Fisheries and Oceans (appellant) v. 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)

(A-2-11; 2012 FCA 40; 2012 CAF 40)

Indexed As: Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al.

Federal Court of Appeal

Nadon, Sharlow and Mainville, JJ.A.

February 9, 2012.

Summary:

This case involved two consolidated judicial review applications by nine non-profit environmental organizations concerning federal government obligations under s. 58 of the Species at Risk Act (SARA) to provide legal protection for the critical habitat of two populations of killer whales. The first application challenged the Minister of Fisheries and Oceans' Northern and Southern Resident Killer Whales (Orcinus orca) in Canada: Critical Habitat Protection Statement, which was issued pursuant to s. 58(5)(b) of the SARA on September 10, 2008. The second application challenged a protection order made jointly in February 2009 by the Minister of Fisheries and Oceans and the Minister of the Environment to limit the scope of the Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order, made pursuant to s. 58(5)(a) of SARA.

The Federal Court, in a decision reported 379 F.T.R. 183, agreed with the applicants that the protection statement and the protection order contained a number of legal errors and were therefore unlawful. The court made a number of declarations, including that: "Ministerial discretion does not legally protect critical habitat within the meaning of section 58 of SARA, and it was unlawful for the Minister to have cited discretionary provisions of the Fisheries Act in the Protection Statement". The MFO appealed, raising an issue as to the appropriate standard of review of the MFO's interpretation of the SARA and arguing that the MFO was lawfully entitled to rely on the provisions of the Fisheries Act and Regulations in making the killer whales protection statement.

The Federal Court of Appeal dismissed the MFO's appeal on the standard of review issue, confirming that the standard of review of the MFO's interpretation of the SARA was correctness. The court held that the declaration under appeal should be upheld save insofar as, for the purposes of s. 58 of the SARA, it impeded the MFO from relying, in appropriate cases, on s. 36 of the Fisheries Act and the regulations adopted under that section, which prohibited the deposit of deleterious substances in water frequented by fish. The court therefore allowed the appeal to that extent only, and consequently quashed the declaration in part.

Animals - Topic 4201

Species at risk (incl. marine animals) - General - The Federal Court of Appeal provided an overview of the provisions of the Species at Risk Act - See paragraphs 12 to 24.

Animals - Topic 4204

Species at risk (incl. marine animals) - General - Interpretation of legislation - The Minister of Fisheries and Oceans appealed a Federal Court ruling that a protection statement and protection order issued under the Species at Risk Act (SARA) were unlawful - The Minister argued that since Parliament made him responsible for the administration of the regulatory schemes of the SARA and Fisheries Act, his interpretation of their provisions was entitled to deference - The Federal Court of Appeal held that no deference was owed to the Minister in that respect - The reasonableness standard of review did not apply to the interpretation of a statute by a minister responsible for its implementation unless Parliament provided otherwise - Where an application for judicial review of a decision as to the implementation of the SARA was based on an allegation that the Minister misinterpreted a provision of the SARA, or of the Fisheries Act as it related to the SARA, the Minister's interpretation had to be reviewed on a standard of correctness - See paragraphs 5 and 6 and 65 to 105.

Animals - Topic 4204

Species at risk (incl. marine animals) - General - Interpretation of legislation - Section 58 of the Species at Risk Act prohibited the destruction of critical habitat of endangered and threatened species and imposed obligations on the Minister of the Environment (or responsible minister) respecting protection of critical habitat and the issuance of protection statements or protection orders - The Federal Court of Appeal interpreted s. 58 - See paragraphs 112 to 125.

Animals - Topic 4204

Species at risk (incl. marine animals) - General - Interpretation of legislation - The Minister of Fisheries and Oceans issued a protection statement under s. 58 of the Species at Risk Act (SARA) respecting northern and southern resident killer whales - The statement included references to protections offered by the Fisheries Act and Regulations - Interested parties applied for judicial review - The Federal Court, in interpreting s. 58, declared that "Ministerial discretion does not legally protect critical habitat within the meaning of s. 58 of SARA, and it was unlawful for the Minister to have cited discretionary provisions of the Fisheries Act in the Protection Statement" - The Minister appealed, arguing that he lawfully invoked the Fisheries Act in the statement - The Federal Court of Appeal rejected the Minister's interpretation of the SARA on this point - Parliament intended that s. 58 of the SARA provide for compulsory and non-discretionary legal protection for at risk species - That protection was not subject to dilution through discretionary ministerial action, including the Fisheries Act, with the exception of s. 36 which prohibited the deposit of deleterious substances in water frequented by fish - See paragraphs 7 to 11, 52 and 106 to 152.

Animals - Topic 4213

Species at risk (incl. marine animals) - Protection of critical habitat - Protection statements and orders - The Minister of Fisheries and Oceans issued a protection statement respecting killer whales under the Species at Risk Act (SARA) - Interested environmental organizations (applicants) applied for judicial review, challenging the lawfulness of the protection statement (protection statement application) - Thereafter the protection order was issued under the SARA - The applicants filed a second judicial review application, challenging the protection order - The Minister moved to have the protection statement application dismissed for mootness - The Federal Court held that it would exercise its discretion to hear the moot protection statement application - The Minister appealed - The Federal Court of Appeal held that the Federal Court reasonably exercised its discretion and the appeal court should also exercise its discretion to entertain the issues on appeal, even though they were moot - Judicial economy would be served, the issues were of public importance and were all questions of statutory interpretation respecting which the Minister, acting as a member of the executive branch of government, sought the court's opinion - See paragraphs 55 to 64.

Animals - Topic 4213

Species at risk (incl. marine animals) - Protection of critical habitat - Protection statements and orders - [See all Animals - Topic 4204 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See first Animals - Topic 4213 ].

Crown - Topic 666

Authority of Ministers - Interpretation of legislation (incl. standard of review of ministerial interpretation) - [See first Animals - Topic 4204 ].

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See first Animals - Topic 4213 ].

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. 5].

Environmental Defence Canada et al. v. Canada (Minister of Fisheries and Oceans) (2009), 349 F.T.R. 225; 2009 FC 878, refd to. [para. 41].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 45].

AB Hassle et al. v. Apotex Inc. et al. (2008), 375 N.R. 342; 2008 FCA 88, refd to. [para. 57].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 57].

Baron et al. v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] 2 F.C.R. 311; 387 N.R. 278; 2009 FCA 81, refd to. [para. 58].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 67].

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 337 D.L.R.(4th) 385; 2011 SCC 53, refd to. [para. 67].

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 2011 SCC 7, refd to. [para. 67].

Global Wireless Management Corp. v. Public Mobile Inc. - see Public Mobile Inc. v. Canada (Attorney General) et al.

Public Mobile Inc. v. Canada (Attorney General) et al. (2011), 420 N.R. 50; 2011 FCA 194, refd to. [para. 67].

Toussaint v. Canada (Attorney General) (2011), 420 N.R. 213; 2011 FCA 213, refd to. [para. 67].

Adam et al. v. Canada (Minister of the Environment) et al.; [2011] 4 C.N.L.R. 17; 395 F.T.R. 48; 2011 FC 962, refd to. [para. 68].

Athabasca Chipewyan First Nation v. Canada (Minister of the Environment) - see Adam et al. v. Canada (Minister of the Environment) et al.

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 77].

Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; 55 N.R. 194; 14 D.L.R.(4th) 289, refd to. [para. 77].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 80].

Superintendent of Brokers v. Pezim - see Pezim v. British Columbia Securities Commission et al.

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 80].

Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 81].

Union des employés de service, local 298 v. Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, refd to. [para. 82].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 82].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc. (2011), 423 N.R. 95; 2011 SCC 59, refd to. [para. 89].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 90].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 112].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 112].

Quebec (Attorney General) v. Moses et al., [2010] 1 S.C.R. 557; 401 N.R. 246; 2010 SCC 17, appld. [para. 54]; refd to. [para. 127].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; 206 N.R. 363; 142 D.L.R.(4th) 193, refd to. [para. 147].

Carpenter Fishing Corp. et al. v. Canada (Minister of Fisheries and Oceans) et al., [1998] 2 F.C. 548; 221 N.R. 372; 155 D.L.R.(4th) 572 (F.C.A.), refd to. [para. 147].

Statutes Noticed:

Fisheries Act, R.S.C. 1985, c. F-14, sect. 35 [para. 128]; sect. 36 [para. 133].

Species at Risk Act, S.C. 2002, c. 29, sect. 57 [para. 110]; sect. 58(1), sect. 58(4), sect. 58(5) [para. 111].

Counsel:

Lorne Lachance and Lisa Riddle, for the appellant;

Margot Venton and Tim Leadem, for the respondents.

Solicitors of Record:

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

Ecojustice, Vancouver, British Columbia, for the respondents.

This appeal was heard in Vancouver, British Columbia, on November 30, 2011, before Nadon, Sharlow and Mainville, JJ.A., of the Federal Court of Appeal. The following decision was delivered in Ottawa, Ontario, on February 9, 2012, for the court, by Mainville, J.A.