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Court ruling means Department of Fisheries and Oceans must overhaul recovery plans

Vancouver, BC — A precedent-setting legal victory for endangered species may put an end to years of unlawful action by the Government of Canada. In a September 9 ruling, the Federal Court admonished the Minister of Fisheries and Oceans (DFO) for failing to identify the habitat of the Nooksack dace, an endangered fish restricted to only four streams in BC's Lower Mainland. The ruling will ensure greater protection of species-at-risk and their habitats across Canada: from the smallest minnow to BC's massive humpback whales.

In his judgment, Justice Campbell said the lawsuit, brought by Ecojustice lawyers on behalf of the David Suzuki Foundation, Environmental Defence, Georgia Strait Alliance and the Wilderness Committee, was "absolutely necessary." He described the case as "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."

That law, the Species at Risk Act, requires the federal government to identify the critical habitat of endangered and threatened species. The environmental groups' lawsuit was filed in 2007 after the DFO unlawfully deleted habitat maps from the Nooksack dace recovery strategy.

"We are ecstatic about the ruling," said Christianne Wilhelmson of the Georgia Strait Alliance. "We hope that DFO will now start giving real protection to endangered plants and animals without having to be dragged into court for every species it is supposed to protect. Canadians owe a lot to this little minnow and to the scientists who stood up for it."

"This case is not only a tremendous victory for the dace, but for Canadian species everywhere that have been left unprotected by the Act," said Rachel Plotkin of the David Suzuki Foundation.

The court's decision has implications far beyond the Nooksack dace. Justice Campbell ruled that critical habitat for the Nooksack dace was deleted on the basis of an unlawful DFO policy direction. That policy directed that critical habitat information should be removed or suppressed from all recovery strategies for all aquatic species at risk in British Columbia.

"We are putting DFO on formal notice that it has 90 days to rewrite BC species' recovery strategies that have unlawfully failed to identify critical habitat," said Ecojustice lawyer Lara Tessaro. "DFO's unlawful policy appears to have affected at least 20 aquatic species in BC, from resident killer whales to blue whales to Salish suckers. We believe the Court's decision means that DFO must fix at least 17 recovery strategies."

The ruling is the second major legal victory for endangered species in eight weeks. In another Ecojustice lawsuit, the Federal Court also ruled in favour of species-at-risk, holding that the Minister of Environment had acted unlawfully in declining to identify critical habitat of the Prairies' greater sage grouse.

"This string of successful lawsuits means that the Government of Canada can no longer turn a blind eye to disappearing species by claiming it can't identify critical habitat," said Gwen Barlee of the Wilderness Committee. "This is a whale of a judgement: a ruling about a homely minnow will actually protect BC's endangered humpback and killer whales."

The environmental groups will be participating in a five-year parliamentary review of the Species at Risk Act, which is set to resume later this month.

"With the impending five-year review of the Species at Risk Act by Parliament, we hope that the inadequacies of the Act's implementation that this case lays bare prompts thorough public hearings by MP's," said Rick Smith of Environmental Defence. "Canadians deserve some answers as to why the federal government is failing to protect our country's natural heritage despite having a legal duty to do so."

For more information, please visit www.ecojustice.ca or contact:
Lara Tessaro, Lawyer, Ecojustice, (604) 313-3132 or Susan Pinkus, Staff Scientist, Ecojustice (604)-537-6407

Rachel Plotkin, Biodiversity Policy Analyst, David Suzuki Foundation (613) 594-9026

Rick Smith, Executive Director, Environmental Defence Canada (416) 670-9521

Gwen Barlee, Policy Director, Wilderness Committee, (604) 683-8220 or cell (604) 202-0322

Christianne Wilhelmson, Managing Director, Georgia Strait Alliance, (604) 862-7579

For scientific information on Nooksack dace, please contact: Mike Pearson Ph.D., leading Nooksack dace expert, Pearson Ecological, (604) 785-7246

September 10, 2009
http://www.davidsuzuki.org/media/news/2009/09/legal-victory-for-endangered-species-across-canada/