By Pierre Sadik

Court holds that, "this is a story about the creation and application of policy by the Minister in clear contravention of the law, and a reluctance to be held accountable for failure to follow the law."

The federal government can be decidedly zealous in applying the law when it wants to be. With the Income Tax Act, anti-terrorism legislation, or the Criminal Code the courts are frequently called upon to rein in overzealous government officials who try to take the law to the nth degree.

That's not the case with Canada's environmental laws. Federal governments have a history of being lax in their interpretation of environmental protection legislation including, most recently, the Species at Risk Act (SARA).

This was brought to the fore in a recent federal court case involving the Department of Fisheries and Oceans and a number of environmental groups which culminated in a decision last month. The case involves the SARA and a small fish called the Nooksack dace. The dace, whose dwindling numbers can still be found in four streams in BC's Fraser Valley, is not much larger than a minnow, but the repercussions of the case have made a big splash.

The dace's legal status as "endangered" was determined by a number of scientists, including Canada's leading authority on this species, retained by the department to report back to the government under the SARA. The department was then obliged to prepare and publicly post a "recovery strategy" for the dace in which, pursuant to subsection 41© of the act, it was also required to identify "critical habitat" to ensure the dace's survival. (The primary cause of decline for 84% of species at risk in Canada is habitat loss.) The department posted the final recovery strategy but failed to identify any critical habitat for the dace, thus, essentially, rendering the final recovery strategy useless.

The court found an emerging pattern of illegal behaviour on the government's part, going back a number of years, and stated, "this is a story about the creation and application of policy by the Minister in clear contravention of the law, and a reluctance to be held accountable for failure to follow the law."

The latter comment was directed at the government's attempt at the 11th hour to make the case go away by agreeing with some of the applicants' key pleadings. The court could have, and perhaps ordinarily would have, found the applicants' complaint to be moot but instead relied on the fact that the applicants had in this, and previous similar instances involving other species, exhausted all non-litigious means to try to reverse the government's illegal behaviour and ensure that it implements the SARA.

Instead, the judge went out of his way to assert that the government had "acted contrary to the law intended by Parliament to protect the Dace" and took great pains to identify precisely how the department, which was charged with the protection of certain species, had instead made policy decisions pursuant to which "it is obvious the impact on the dace is not the focus".

In ignoring the requirements of the act, the government hung its hat on a legal opinion that suggested that the clear language in the act, which plainly states that a recovery strategy "must include, an identification of the species' critical habitat . . .", does not actually mean that the recovery strategy must include an identification of the species' critical habitat.

The judge found that the department placed considerable reliance on this legal opinion. Emails that form part of the record of the court proceedings show that the bureaucracy took the legal opinion and ran with it — using it as a response to the concerns of others in government who were uneasy with the approach the department was taking in the face of the overwhelming scientific evidence that the dace needed immediate protection.

This is a common example of how some officials have a fundamental misapprehension of what a legal opinion is and what it is not. A legal opinion is simply a guess — albeit an educated one — but still only a guess with regard to what a court may find in connection with the law. A guess is not a "get out of jail free" card, which is how some decision makers appear to treat it, nor is it a legal fig leaf for pushing ahead with an ill-advised policy.

The court's strong words for the government and its willingness to look beyond the strict confines of the case and at the broader pattern of government behaviour suggests what some might call "judicial activism" (a misnomer to be sure, because judicial decisions are never made in a social or economic vacuum).

One thing that governments forget is that judges can have a subtle bias when hearing this type of case. I am, of course, not referring to a bias in favour of the political party that appointed them (as one prime minister famously suggested). I'm referring to a mild, and perhaps subconscious, bias toward interpreting the law in a way that, if at all possible, helps protect the environment. After all, even judges may be inclined to consider not just of the black letter of the law, but also on occasion their children and loved ones who will bear the brunt of today's policy decisions. This is, of course, a generalization, and there undoubtedly are still judges who are the equivalent of the Wild West's "Hanging Judge Roy Bean" when it comes to environmental protection.

Nonetheless, in this instance, I believe we are all indebted to a court that had the perspicacity to ensure that henceforth all federal departments will identify critical habitat when they release a final recovery strategy under the SARA.

Pierre Sadik is the manager of government affairs for the David Suzuki Foundation. The opinions expressed are his own.

This column first appeared in The Hill Times in October 2009.

October 5, 2009

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