A-2-11
2012 FCA 40
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)
Indexed as: David Suzuki Foundation v. Canada (Fisheries and Oceans)
Federal Court of Appeal, Nadon, Sharlow and Mainville JJ.A.—Vancouver, November 30, 2011; Ottawa, February 9, 2012.
Environment — Appeal from Federal Court judgment declaring that ministerial discretion not legally protecting critical habitat under Species at Risk Act (SARA), s. 58; that appellant unlawfully citing discretionary provisions of Fisheries Act in protection statement concerning critical habitat of Northeast Pacific Northern, Southern populations of killer whales — When southern, northern resident populations of killer whales designated as endangered, threatened respectively, listed accordingly in Schedule 1 of SARA — Pursuant to SARA, s. 58(5) appellant required to ensure that critical habitat identified in recovery strategy be protected — Rather than issuing protection order, appellant issuing public statement — However, appellant reversing position, issuing protection order under SARA, s. 58(1),(4) — Respondents challenging lawfulness of Killer Whales Protection Statement (Protection Statement), order by initiating judicial review applications — Main issues herein applicable standard of review, whether appellant erring by relying on Fisheries Act, regulations in making Protection Statement — Issues of statutory interpretation raised herein reviewed, determined on standard of correctness — Parliament intending that appellant be allowed some flexibility as to how to provide compulsory protection under SARA — Prohibitions set out in Fisheries Act, s. 35(1), when read in conjunction with s. 35(2) thereof, constituting legal means whereby appellant enabled to manage, control alteration, disruption or destruction of fish habitat — Protection offered fish habitat under s. 35(1) may be waived at discretion of appellant acting under s. 35(2) — This provision thus not ensuring that critical habitat of endangered or threatened aquatic species “legally protected” — Regarding Fisheries Act, s. 36, wrong for Federal Court to rule section could not be relied on by appellant for purposes of protection statement under SARA, s. 58 — Compliance with Fisheries Act, s. 36(3) may not be waived by appellant through licence, permit or other authorization, nor may derogations from related regulations be authorized — Measures under Fisheries Act, s. 36, specific related regulations legally enforceable, not subject to ministerial discretion — Section 36, regulations made thereunder thus providing for compulsory, non-discretionary, legally enforceable measures — No evidence in record showing whether pollution controls set in related regulations protecting from destruction critical habitat of concerned killer whale populations — Therefore, no basis in present proceedings upon which Federal Court could have determined whether appellant’s reliance on s. 36 could have been justified in light of SARA, s. 58 — While appellant relying on existing fishery management scheme adopted under Fisheries Act in Protection Statement, reliance misguided; regulations at issue not seeking to prohibit destruction of salmon prey as element of critical habit but rather providing framework for management of Pacific salmon fisheries under highly discretionary ministerial licensing scheme — Substitution not approved — Therefore, Federal Court judgment declaring that ministerial discretion not legally protecting critical habitat within meaning of SARA, s. 58 upheld save insofar as impeding appellant from relying, in appropriate cases, on Fisheries Act, s. 36, regulations adopted thereunder — Appeal allowed in part.
Administrative Law — Judicial Review — Standard of Review — In appeal from Federal Court judgment involving protection of critical habitat under Species at Risk Act (SARA), s. 58, principal question concerning meaning of words “legally protected by provisions in, or measures under, this or any other Act of Parliament” found in SARA, s. 58(5) — No deference owed by Federal Court of Appeal to appellant as to interpretation of relevant provisions of SARA or of Fisheries Act, regulations — Parliament not intending to shield appellant’s interpretation of pertinent provisions of SARA, Fisheries Act from judicial review on standard of correctness — Number of clear indicators that Parliament greatly restricting appellant’s discretion, that not intending to shield appellant’s legal interpretation from judicial review — Therefore, issues of statutory interpretation raised by appeal reviewed, determined on standard of correctness.
Construction of Statutes — Appeal from Federal Court judgment declaring, in particular, that ministerial discretion not legally protecting critical habitat under Species at Risk Act (SARA), s. 58 — Pertinent provisions of SARA interpreted to determine whether Parliament intending to allow appellant some flexibility as to how to provide compulsory protection under SARA — Under SARA, s. 58, protection of critical habitat identified in recovery strategy must be achieved through legally enforceable measures — Based on dictionary definitions of word “protect”, French word “protéger”, Parliament’s intent being to avoid interference with, destruction of critical habitat — Juxtaposition of word “legally” with word “protected” to form expression “legally protected” leaving little ambiguity as to Parliament’s intent that critical habitat must be preserved through legally enforceable measures — Legal protection scheme not regulatory management scheme — Based on analysis of SARA, s. 58, Parliament seeking to avoid destruction of identified critical habitat of listed endangered, threatened aquatic species through any means — Consequently, provision in, or measure under, Act of Parliament only legally protecting critical habitat for purposes of SARA,s. 58 if that provision or measure preventing destruction of critical habitat through legally enforceable means not subject to ministerial discretion.
This was an appeal from a Federal Court judgment declaring that ministerial discretion does not “legally protect” critical habitat under section 58 of the Species at Risk Act (SARA) and that it was unlawful for the appellant to have cited discretionary provisions of the Fisheries Act in a protection statement concerning the critical habitat of the Northeast Pacific Northern and Southern population of killer whales. Subsection 58(5) of the SARA provides that the appellant must make an order under subsections 58(1) and (4) protecting the critical habitat of listed endangered or threatened aquatic species if such critical habitat is not legally protected by provisions or measures found in the SARA or another federal legislation.
The Federal Court ruled that the appellant may avoid issuing a critical habitat protection order under the SARA only where the legal protection offered that habitat under another Act of Parliament is the same as that provided under a protection order. It further ruled that the measures available to the appellant under the Fisheries Act could be diluted under the sweeping and largely unfettered discretions granted to the appellant thereunder. Therefore, it concluded that the Fisheries Act could not be resorted to as a substitute to a critical habitat protection order under the SARA. It went on to make 11 declarations of law.
When the southern resident population of killer whales was designated as endangered and the northern resident population of killer whales as threatened, they were listed accordingly in Schedule 1 of the SARA when that statute was adopted. A recovery strategy for these killer whale populations was prepared and included in the public registry. Pursuant to subsection 58(5) of the SARA, the appellant was required to ensure that the critical habitat identified in the strategy be protected within a deadline. Rather than issuing a protection order, the appellant issued a public statement setting out how the critical habitat of the concerned killer whale populations was legally protected. The statement restricted the concept of critical habitat for the purposes of the SARA to geophysical attributes. Some of the most important elements of the critical habitat which had been identified in the recovery strategy were left without protection; the statement did not consider these components as part of “critical habitat” for the purposes of protection under the SARA. The respondents in this appeal challenged the lawfulness of the Killer Whales Protection Statement (Protection Statement) by initiating a judicial review application, arguing that the critical habitat of the concerned killer whale populations included not only the geophysical elements of that habitat but also all the other components identified in the recovery strategy. Before the judicial review application hearing, the appellant reversed its position and a protection order under subsections 58(1) and (4) of the SARA was issued and registered. The respondents then sought clarification as to the scope and meaning of the order and, unsatisfied with the appellant’s response, filed a second judicial review application challenging the practice of limiting the scope of a protection order made under subsections 58(1) and (4) of the SARA to geospatial areas and geophysical elements of critical habitat.
The appellant’s two grounds of appeal in this case concerned the standard of review and the interpretation of the SARA.
The mains issues were the applicable standard of review in this case and whether the appellant erred by relying on the provisions of the Fisheries Act and of its regulations in making the Killer Whales Protection Statement.
Held, the appeal should be allowed in part.
Regarding the standard of review, the principal question concerned the meaning of the words “legally protected by provisions in, or measures under, this or any other Act of Parliament” found in subsection 58(5) of the SARA. No deference is owed by the Federal Court of Appeal to the appellant as to the interpretation of the relevant provisions of the SARA or of the Fisheries Act and its regulations. It was determined that Parliament did not intend to shield the appellant’s interpretation of the pertinent provisions of the SARA and of the Fisheries Act from judicial review on a standard of correctness. Neither the SARA nor the Fisheries Act contains a privative clause, a strong indication of Parliament’s intent not to shield the appellant’s interpretation of these statutes from judicial review. Also, the purpose of section 58 is to ensure that all the critical habitat is protected and, under subsection 58(5), the appellant must make a protection order to protect identified critical habitat unless that habitat is legally protected by, inter alia, an act of Parliament. These are all indications that Parliament has greatly restricted the appellant’s discretion and its intent not to shield the appellant’s legal interpretation from judicial review appears clear. As well, the appellant acts in an administrative capacity and not as an adjudicator when preparing and issuing a protection statement under subsection 58(5) of the SARA. The fact that Parliament has not had to set up an independent administrative tribunal to adjudicate legal issues under the SARA is a further indication of the legislative intent to empower the courts with authority to adjudicate these issues on a standard of correctness. The question in issue is one of statutory interpretation which the courts are best equipped to answer in the circumstances of this case. Finally, though the appellant can certainly claim expertise in the management of the fisheries and of fish habitat, this does not confer on the appellant expertise in the interpretation of statutes. Expertise in fisheries does not necessarily confer special legal expertise to interpret the statutory provisions of the SARA or of the Fisheries Act. Therefore, the issues of statutory interpretation raised by this appeal were reviewed and determined on a standard of correctness.
To determine whether Parliament intended that the appellant be allowed some flexibility as to how to provide the compulsory protection under the SARA, the pertinent provisions thereof were interpreted. Under section 58, protection of critical habitat identified in a recovery strategy must be achieved through legally enforceable measures. Based on the dictionary definitions of the word “protect” and the French word “protéger”, Parliament’s intent was to avoid interference with and destruction of critical habitat. The juxtaposition of the word “legally” with the word “protected” to form the expression “legally protected” leaves little ambiguity as to Parliament’s intent that critical habitat must be preserved through legally enforceable measures. A legal protection scheme is not a regulatory management scheme. Had Parliament intended only a legal prohibition from destruction to protect critical habitat, it would not have provided the alternative of a protection statement. In conclusion, a textual, contextual and purposive analysis of section 58 of the SARA showed that Parliament is precisely seeking to avoid the destruction of identified critical habitat of listed endangered and threatened aquatic species through any means, including through activities authorized under discretionary permits or licences. Consequently, a provision in, or a measure under, an Act of Parliament only legally protects critical habitat for the purposes of section 58 if that provision or measure prevents the destruction of critical habitat through legally enforceable means which are not subject to ministerial discretion.
As to whether relevant provisions of the Fisheries Act could be relied on by the appellant for the purposes of section 58 of the SARA, the prohibitions set out in subsection 35(1), when read in conjunction with subsection 35(2), constitute a legal means whereby the appellant is enabled to manage and control the alteration, disruption or destruction of fish habitat. There is no dispute that the protection offered fish habitat under subsection 35(1) may be waived at the discretion of the appellant acting under subsection 35(2). Thus, this provision cannot ensure that the critical habitat of endangered or threatened aquatic species is “legally protected” under the meaning of section 58 of the SARA. Regarding section 36 of the Fisheries Act, the Federal Court ruled that this section could not be relied on by the appellant for the purposes of a protection statement under section 58 of the SARA. This conclusion was based on the fact that though this section prohibits the deposit of a deleterious substance into water frequented by fish, it allows for the authorization of such deposits through regulation at Cabinet’s discretion. This ruling was not agreed with. Compliance with subsection 36(3) of the Fisheries Act may not be waived by the appellant through a licence, permit or other authorization, nor may the appellant authorize derogations from related regulations. Measures under this section and specific related regulations are legally enforceable and are not subject to ministerial discretion. This section and the regulations made thereunder thus provide for compulsory, non-discretionary and legally enforceable measures. Regulations made under section 36 of the Fisheries Act may be adopted or amended from time to time. The fact a statutory provision or a regulatory provision may be eventually modified does not entail that it may not be relied upon by the appellant for the purposes of subsection 58(5) of the SARA. There is a fundamental difference between a non-discretionary and legally enforceable regulation and a discretionary ministerial licensing scheme. There was no evidence in the record showing whether the pollution controls set out in related regulations protect from destruction the critical habitat of the concerned killer whale populations. Therefore, there was no basis in these proceedings upon which the Federal Court could have determined whether the appellant’s reliance on section 36 of the Fisheries Act could have been justified in light of the provisions of section 58 of the SARA. Consequently, to the extent that the Federal Court’s declaration impedes the appellant from relying, in appropriate cases, on section 36 of the Fisheries Act and its regulations for the purposes of a protection statement made under paragraph 58(1)(b) of the SARA, it could not stand. In the present case, it did not need to be determined whether the appellant’s reliance on this provision met the requirements of section 58 of the SARA.
In the Protection Statement, the appellant relied on the existing fishery management scheme adopted under the Fisheries Act, submitting that it offers adequate protection to ensure the availability of salmon prey for the concerned killer whale populations. This reliance was misguided; the regulations at issue do not seek to prohibit the destruction of salmon prey as an element of critical habit but rather provide the framework for the management of the Pacific salmon fisheries under a highly discretionary ministerial licensing scheme. The substitution of the non-discretionary and compulsory critical habitat protection scheme of section 58 of the SARA with the discretionary fisheries management scheme established under the Fisheries Act and its regulations should not be approved. The protection of critical habitat should not be confused with the management of critical habitat. The SARA calls for both the protection of critical habitat under section 58 and for management measures to ensure the recovery of that habitat through action plans and other methods.
Therefore, the Federal Court judgment declaring that ministerial discretion does not legally protect critical habitat within the meaning of section 58 of the SARA was upheld save insofar as, for the purposes of section 58 of the SARA, it impedes the appellant from relying, in appropriate cases, on section 36 of the Fisheries Act and the regulations adopted under that section.
STATUTES AND REGULATIONS CITED
Act of Settlement, 1700 (U.K.), 12 & 13 Will. III, c. 2.
An Act declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, 1688 (U.K.), 1 Will. & Mary, Sess. 2, c. 2 (Bill of Rights).
British Columbia Sport Fishing Regulations, 1996, SOR/96-137, ss. 42, 43, 44, 45 (as am. by SOR/2001-156, s. 10(E)), 46 (as am. by SOR/2002-380, s. 7(E)), 47, 48 (as am. by SOR/2001-156, s. 11), 49 (as am. by SOR/2002-380, s. 8(E)), 50, Sch. VI.
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order, SOR/2009-68.
Fisheries Act, R.S.C., 1985, c. F-14, ss. 2 “fish” (as am. by S.C. 1991, c. 1, s. 1), 7(1), 35, 36.
Fishery (General) Regulations, SOR/93-53, s. 22 (as am. by SOR/93-333, s. 4).
Metal Mining Effluent Regulations, SOR/2002-222.
National Energy Board Act, R.S.C., 1985, c. N-7, s. 99(1) (as am. by S.C. 1990, c. 7, s. 25(F)).
Pacific Fishery Regulations, 1993, SOR/93-54, ss. 51, 52, 53, 54, 55, 56, 57, 58 (as am. by SOR/2010-270, s. 11), 59, 60, Sch. VI (as am. by SOR/95-181, s. 3(F); 96-330, s. 4).
Patent Act, R.S.C., 1985, c. P-4.
Pulp and Paper Effluent Regulations, SOR/92-269, ss. 6(1)(a) (as am. by SOR/2004-109, s. 2), (b) (as am. idem), (2) (as am. idem), 14 (as am. idem, s. 12; 2008-239, s. 3(E)), 15(1) (as am. by SOR/2004-109, s. 12; 2008-239, s. 4), 16(1) (as am. by SOR/2004-109, s. 12), (2) (as am. idem), (4) (as am. idem), 18(1) (as am. idem, s. 14), 19 (as am. idem, s. 15; 2008-239, s. 5(E)), 20 (as am. by SOR/2004-109, s. 15; 2008-239, s. 6(E)), 21, 33 (as am. by SOR/2004-109, s. 18), 34 (as am. idem).
Species at Risk Act, S.C. 2002, c. 29, preamble, ss. 2(1) “aquatic species”, “competent minister” (as am. by S.C. 2005, c. 2, s. 14), “critical habitat”, “endangered species”, “extirpated species”, “habitat”, “Minister”, “residence”, “species at risk”, “species of special concern”, “threatened species”, (3), 5, 6, 8(1), 11, 27, 32, 33, 37(1), 38, 39, 41(1), 42, 43, 46, 47, 48, 49 (as am. by S.C. 2005, c. 2, s. 22), 50, 51, 52, 53, 54, 55, 57, 58, 60, 61, 73 (as am. by S.C. 2005, c. 2, s. 23), 74, 75, 77, 80(2), 83, 97, 98, Sch. 1
Statutory Instruments Act, R.S.C., 1985, c. S-22, s. 2(1) “regulation”.
TREATIES AND OTHER INSTRUMENTS CITED
Convention on Biological Diversity, 5 June 1992, [1993] Can. T.S. No. 24.
CASES CITED
applied:
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231, [1989] 3 W.W.R. 97, 75 Sask. R. 82; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, 218 N.S.R. (2d) 311, 232 D.L.R. (4th) 577.
considered:
Environmental Defence Canada v. Canada (Fisheries and Oceans), 2009 FC 878, 45 C.E.L.R. (3d) 161, 349 F.T.R. 225; Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3, 327 D.L.R. (4th) 513, 14 Admin. L.R. (5th) 1; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, 328 D.L.R. (4th) 1, 16 Admin. L.R. (5th) 157; Adam v. Canada (Environment), 2011 FC 962, sub nom. Athabasca Chipewyan First Nation v. Canada (Environment), [2013] 2 F.C.R. 201, 62 C.E.L.R. (3d) 218, [2011] 4 C.N.L.R. 17; Blanchard v. Control Data Canada Ltd. et al., [1984] 2 S.C.R. 476, (1984), 14 D.L.R. (4th) 289, 14 Admin. L.R. 133; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, (1994), 114 D.L.R. (4th) 385, [1994] 7 W.W.R. 1; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, (1997), 144 D.L.R. (4th)1, 50 Admin. L.R. (2d) 199; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, (1998), 160 D.L.R. (4th) 193, 11 Admin. L.R. (3d) 1, amended reasons, [1998] 1 S.C.R. 1222, (1998), 11 Admin. L.R. (3d) 130; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, 223 D.L.R. (4th) 599, [2003] 5 W.W.R. 1; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, 340 D.L.R. (4th) 1, [2012] 2 W.W.R. 619.
referred to:
Aktiebolaget Hässle v. Apotex Inc., 2008 FCA 88, 65 C.P.R. (4th) 5, 375 N.R. 342; Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311, 309 D.L.R. (4th) 411, 79 Imm. L.R. (3d) 157; Public Mobile Inc. v. Canada (Attorney General), 2011 FCA 194, [2011] 3 F.C.R. 344, 333 D.L.R. (4th) 463, 420 N.R. 50; Toussaint v. Canada (Attorney General), 2011 FCA 213, [2013] 1 F.C.R. 374, 420 N.R. 213; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227, (1979), 25 N.B.R. (2d) 237, 97 D.L.R. (3d) 417; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, (1988), 35 Admin. L.R. 153, 89 CLLC 14,045; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, 519 A.R. 1, 339 D.L.R. (4th) 428; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, (2005), 259 D.L.R. (4th) 193, [2005] 5 C.T.C. 215; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418, 154 D.L.R. (4th) 193; Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557, 318 D.L.R. (4th) 288, 51 C.E.L.R. (3d) 1; Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, (1997), 142 D.L.R. (4th) 193, 43 Admin. L.R. (2d) 1; Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548, (1997), 155 D.L.R. (4th) 572, 221 N.R. 372.
AUTHORS CITED
Canadian Oxford Dictionary, 2nd ed. Toronto: Oxford University Press, 2004, “protect”.
Dussault, René and Louis Borgeat. Administrative Law: A Treatise, 2nd ed. Toronto: Carswell, 1990.
Goodhart, A. L. and R. E. Megarry. “Judicial Review and the Rule of Law: Historical Origins” (1956), 72 L.Q.R. 345
Hailsham of St. Marylebone, Lord. “Democracy and Judicial Independence” (1979), 28 U.N.B.L.J. 7.
Northern and Southern Resident Killer Whales (Orcinus orca) in Canada: Critical Habitat Protection Statement, online: Species at Risk Public Registry: <https://www.registrelep-sararegistry.gc.ca/virtual_sara/files/ch_killer_Whale_0908_e.pdf>.
Nouveau Petit Robert : Dictionnaire alphabétique et analogique de la langue française. Paris: Dictionnaires Le Robert, 2006, “protéger”.
Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada, March 2008, online: <http://publications.gc.ca/collections/collection_2008/ec/En3-4-46-2007E.pdf>.
APPEAL from a Federal Court decision (2010 FC 1233, [2012] 3 F.C.R. 136, 55 C.E.L.R. (3d) 250, 379 F.T.R. 183) declaring that ministerial discretion does not “legally protect” critical habitat under section 58 of the Species at Risk Act and that it was unlawful for the appellant to have cited discretionary provisions of the Fisheries Act in a protection statement concerning the critical habitat of the Northeast Pacific Northern and Southern population of killer whales. Appeal allowed in part.
APPEARANCES
Lorne Lachance and Lisa Riddle for appellant.
Margot Venton and Tim Leadem for respondents.
SOLICITORS OF RECORD
Deputy Attorney General of Canada for appellant.
Ecojustice, Vancouver, for respondents.
The following are the reasons for judgment rendered in English by
[1] Mainville J.A.: The Minister of Fisheries and Oceans (Minister) is appealing a judgment of the Federal Court cited as 2010 FC 1233, [2012] 3 F.C.R. 136 (reasons) in which Russell J. (Federal Court Judge) declared that ministerial discretion does not “legally protect” critical habitat under section 58 of the Species at Risk Act, S.C. 2002, c. 29 (SARA) and which further declared that it was unlawful for the Minister to have cited discretionary provisions of the Fisheries Act, R.S.C., 1985, c. F-14 in a protection statement concerning the critical habitat of the Northeast Pacific Northern and Southern populations of killer whales.
[2] Subsection 58(5) of the SARA provides that the Minister must make an order under subsections 58(1) and (4) protecting the critical habitat of listed endangered or threatened aquatic species if such critical habitat “is not legally protected by provisions in, or measures under, this or any other Act of Parliament”. The Minister had determined that the Fisheries Act legally protected some aspects of the critical habitat of killer whales and could thus be resorted to as a substitute to a protection order under the SARA.
[3] The Federal Court Judge ruled that the Minister may avoid issuing a critical habitat protection order under the SARA only where the legal protection offered that habitat under another Act of Parliament is the same as that provided under a protection order. He further ruled that the measures available to the Minister under the Fisheries Act could be diluted under the sweeping and largely unfettered discretions granted to the Minister under that statute. Consequently, he concluded that the Fisheries Act could not be resorted to as a substitute to a critical habitat protection order under the SARA.
Overview of conclusions
[4] The Minister is appealing to this Court on two main grounds.
[5] The first ground of appeal concerns the standard of review. The Minister submits that Parliament made him responsible for the administration of the regulatory schemes of the SARA and of the Fisheries Act; hence, his interpretation of their provisions is entitled to deference. The Minister bases that submission on a judgment rendered fairly recently by the Supreme Court of Canada: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir). That judgment emphasized the deference owed to an administrative tribunal when it interprets a provision of its enabling (or “home”) statute or statutes closely related to its functions.
[6] In my view, no deference is owed to the Minister as to the interpretation of the relevant provisions of the SARA or of the Fisheries Act. The Minister’s interpretation of the Supreme Court’s most recent pronouncements is erroneous as it fails to consider the context in which they were developed and the reasons which may warrant deference to an administrative tribunal when it interprets its enabling statute. The reasonableness standard of review does not apply to the interpretation of a statute by a minister responsible for its implementation unless Parliament has provided otherwise. I thus conclude—as did the Federal Court Judge in this case—that where an application for judicial review of a decision as to the implementation of the SARA is based on an allegation that the Minister has misinterpreted a provision of the SARA—or of the Fisheries Act as it relates to the SARA—the Minister’s interpretation must be reviewed on a standard of correctness. The courts owe no deference to the Minister in that respect.
[7] The second ground of appeal concerns the interpretation of the SARA. The Minister does not dispute that the protection of critical habitat under the SARA is compulsory. However, the Minister submits that Parliament intended that there should be some flexibility as to the modalities of that compulsory protection. The Minister states that he does not wish to retain discretion under the Fisheries Act to undermine that protection or to provide protection which is inferior to that afforded under a SARA protection order. Rather, the Minister submits that certain measures under the Fisheries Act do protect critical habitat against destruction, and that he should therefore be able to resort to such measures as alternatives to a SARA protection order even though they might be subject to his discretion.
[8] I do not accept the Minister’s interpretation of the SARA on this point. When Parliament adopted section 58 of the SARA, its intent was to provide for compulsory and non-discretionary legal protection from destruction for the identified critical habitat of listed endangered or threatened aquatic species. This protection can be achieved through a provision or measure under an Act of Parliament which legally protects from destruction of that habitat and which is not subject to dilution through discretionary ministerial action. In the absence of such a legally enforceable provision or measure, the Minister must make a protection order under subsections 58(1) and (4) of the SARA to ensure the protection of that habitat.
[9] While the Minister submits that, by retaining his discretion under the Fisheries Act he does not intend to undermine the protection provided under the SARA or to provide protection that is inferior to that available under a SARA protection order, he fails to explain how his discretion under the Fisheries Act would be legally fettered. Parliament adopted section 58 of the SARA precisely to avoid the destruction of the identified critical habitat of listed endangered and threatened aquatic species through any means. If the Minister’s position were accepted, the compulsory and non-discretionary protection scheme set out by Parliament under the SARA would be transformed into a protection scheme largely subject to ministerial discretion. Such was not Parliament’s intent in adopting the SARA.
[10] However—and contrary to the conclusions of the Federal Court Judge in this case—there may be circumstances in which the Minister may rely on section 36 of the Fisheries Act (which I take to include regulations made under that section) in a protection statement made under paragraph 58(5)(b) of the SARA. Section 36 of the Fisheries Act prohibits the deposit of deleterious substances in water frequented by fish, unless such deposit is authorized under regulations adopted by the Governor in Council. In a given case, the combined operation of section 36 of the Fisheries Act and of its regulations may afford a particular endangered or threatened species the legal protection mandated by section 58 of the SARA. In such a case, it may be appropriate for the Minister to rely on those provisions for the purposes of paragraph 58(5)(b) of the SARA.
[11] However, in this case, the record contains no evidence as to the effect, if any, of section 36 and its regulations on the killer whale critical habitat at issue. Therefore, there was no basis in these proceedings upon which the Federal Court Judge could have determined whether the Minister’s reliance on section 36 could have been justified in light of the provisions of section 58 of the SARA.
Overview of the provisions of the Species at Risk Act relevant to this appeal
[12] The SARA was assented to in 2002 as the first comprehensive federal legislation seeking (a) to prevent wildlife species from being extirpated or becoming extinct and (b) to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity. That legislation was adopted partly to meet Canada’s obligations under the United Nations Convention on the Conservation of Biological Diversity [Convention on Biological Diversity, 5 June 1992, [1993] Can. T.S. No. 24]. Some of the relevant provisions of the SARA are reproduced in a schedule to these reasons.
[13] The SARA identifies different categories of species at risk and distinguishes between extirpated species, endangered species, threatened species and species of special concern. For the purposes of this appeal, we need only concern ourselves with the scheme pertaining to listed endangered and threatened aquatic species.
[14] An endangered species is a wildlife species that is facing imminent extirpation or extinction, while a threatened species is a species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction. An aquatic species includes fish, shellfish, crustaceans, marine animals, and marine plants. It is not disputed that killer whales are an aquatic species for the purposes of the SARA: subsection 2(1) of the SARA concerning the definitions of “aquatic species”, “endangered species” and “threatened species”; section 2 of the Fisheries Act concerning the definition of “fish” [as am. by S.C. 1991, c. 1, s. 1].
[15] While the Minister of the Environment is responsible for the administration of the SARA, the appellant Minister is the competent minister under that statute with respect to aquatic species, including with regard to the preparation of recovery strategies, action plans and the protection of critical habitat for such species which are endangered or threatened: subsection 2(1) “competent minister” [as am. by S.C. 2005, c. 2, s. 14] and “Minister”, subsections 8(1) and 37(1), section 47, and subsection 58(5) of the SARA.
[16] The SARA sets out a listing process to identify species at risk. An initial list (distinguishing between extirpated, endangered, and threatened species and species of special concern) is included in Schedule 1 of the SARA. Wildlife species may be added to, or removed from, this list—or reclassified within the list—by the Governor in Council taking into account the recommendations of an expert committee designated the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) and after consultation with relevant stakeholders: section 27 of the SARA.
[17] The listing of an aquatic wildlife species as endangered or threatened extends important legal protections to that species. To kill, harm, harass, capture or take an individual of a listed endangered or threatened aquatic wildlife species is prohibited by subsection 32(1) of the SARA. Possessing, collecting, buying, selling or trading an individual of such a species—or any part or derivative thereof—is prohibited by subsections 32(2) and (3). Furthermore, section 33 prohibits any person from damaging or destroying the residence or dwelling place (such as a den, nest or other similar area or place) of one or more individuals of such a species. Those who fail to respect these prohibitions are liable to large fines and to imprisonment: sections 97 and 98.
[18] The listing of an aquatic species in Schedule 1 of the SARA as endangered or threatened also requires the Minister to prepare a recovery strategy for that species within specified timelines: subsections 37(1) and 42(2) of the SARA. Such a recovery strategy must be prepared in cooperation with various stakeholders: section 39. If the Minister determines that the recovery of the endangered or threatened aquatic species is feasible, the recovery strategy must address the threats to the survival of the species identified by the COSEWIC, including any loss of habitat, and must include, inter alia, an identification of the species’ critical habitat to the extent possible, based on the best available information, including information provided by COSEWIC, and examples of activities that are likely to result in its destruction: paragraph 41(1)(c).
[19] The proposed recovery strategy is then subject to public consultations. The Minister must consider any comments received, and make the changes he considers appropriate. Finally, the Minister must finalize the recovery strategy by including a copy in the public registry established for the purposes of the SARA: section 43. The Minister must also publicly report every five years on the implementation of the recovery strategy and the progress towards meeting its objectives: section 46.
[20] The Minister must prepare one or more action plans based on the recovery strategy, and such plans must include, inter alia: an identification of the aquatic species critical habitat and examples of activities which are likely to result in its destruction; a statement of measures which are proposed to be taken to protect the species critical habitat; an identification of any portions of the species critical habitat that have not been protected; and a statement of the measures that are to be taken to implement the recovery strategy: section 47 and paragraphs 49(1)(a), (b), (c) and (d).
[21] A final recovery strategy for a listed endangered or threatened aquatic species has important legal consequences under the SARA since the entire critical habitat identified in the recovery strategy must be protected: section 57 and subsections 58(1) to (5) of the SARA. This protection is achieved either:
(a) through provisions in or measures under the SARA or any other Act of Parliament; in such case, the Minister must identify how the critical habitat is legally protected in a protection statement made pursuant to paragraph 58(5)(b); or
(b) through a protection order made by the Minister under subsections 58(1) and (4) in respect of the critical habitat or portion of the critical habitat specified in the order.
[22] Since many endangered and threatened species are not aquatic species or migratory bird species falling under primary federal jurisdiction, the SARA provides that federal action to prohibit the destruction of the critical habitat of most species must be exercised in close collaboration with provincial and territorial authorities. Consequently, different provisions of the SARA govern the protection of the critical habitat of these other species on lands which are not federal lands: sections 60 and 61 of the SARA. It is not however necessary to examine these other provisions of the SARA for the purposes of this appeal, and nothing in these reasons should be understood as pertaining to them.
[23] The Minister may also use his permitting and licensing authorities under the SARA or under another Act of Parliament to protect listed wildlife species, their critical habitat or their residences or dwelling places: sections 73 [as am. by S.C. 2005, c. 2, s. 23], 74 and 75 of the SARA.
[24] The prohibitions under the SARA preventing the harvesting and trading in endangered or threatened aquatic species, the destruction of their dwelling places and the destruction of their critical habitat do not apply to activities related to public safety, health or national security that are authorized by, or under, an Act of Parliament: subsections 83(1) to (4) of the SARA.
Background to these proceedings
[25] Killer whales are the largest members of the dolphin family. They are long-lived animals with no natural predators. They are found in all three of Canada’s oceans, as well as occasionally in Hudson Bay and the Gulf of St. Lawrence. In British Columbia, they have been recorded in almost all saltwater areas. Three distinct forms of killer whale inhabit Canadian Pacific waters: transient, offshore and resident. These forms are sympatric but socially isolated and differ in their dietary preferences, genetics, morphology and behaviour.
[26] Resident killer whales are the best understood. Their social organization is highly structured and their fundamental unit is matrilineal, comprising all surviving members of a female lineage. A typical matrilineal unit comprises an adult female, her offspring, and the offspring of her daughters. Both sexes remain within their natal matrilineal unit.
[27] There are two communities of resident killer whales in British Columbia: the northern resident population and the southern resident population. These resident killer whale populations are considered at risk because of their small population size, low reproductive rate, and the existence of a variety of man-made threats that have the potential to prevent recovery or to cause further declines. Principal among these threats are environmental contamination, reductions in the availability and quantity of prey, and both physical and acoustic disturbance. In 2003, the southern resident killer whale population counted 85 members, while the northern resident population counted 205 members.
[28] In 2001, COSEWIC designated the southern population as endangered, and the northern population as threatened. These populations were listed accordingly in Schedule 1 of the SARA when that statute was adopted by Parliament. Consequently, under subsections 37(1) and 42(2) of the SARA, the Minister was required to prepare a recovery strategy for these killer whale populations within specified timelines. For this purpose, a Resident Killer Whale Recovery Team (the Recovery Team) comprising independent and government experts was convened in 2004.
[29] Following extensive study and review, a final draft recovery strategy was completed in May of 2006 for submission to the Minister. The manner in which critical habitat was described in this draft led to disputes between the Recovery Team and officials from the Department of Fisheries and Oceans. These disputes delayed the posting and approval of the recovery strategy, which was only included in the public registry established under the SARA in March of 2008 [Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada].
[30] Pursuant to subsection 58(5) of the SARA, the inclusion of the recovery strategy in the public registry required the Minister to ensure that the critical habitat identified in that strategy be protected within 180 days. That protection could be achieved either through a protection order made by the Minister under subsections 58(1) and (4) or through a statement by the Minister setting out how the critical habitat or portions of it, as the case may be, would be legally protected under an Act of Parliament. The Minister did not make a protection order under the SARA. Rather, he included in the public registry a statement setting out how the critical habitat of the concerned killer whale populations was legally protected (the Killer Whales Protection Statement) [Northern and Southern Resident Killer Whales (Orcinus orca) in Canada: Critical Habitat Protection Statement].
[31] The Killer Whales Protection Statement restricted the concept of critical habitat for the purposes of the SARA to geophysical attributes. Consequently, the Killer Whales Protection Statement identified three types of human activity which could potentially destroy the geophysical attributes of the critical habitat of the concerned killer whale populations in the identified areas. It further identified various legislative provisions, including section 35 of the Fisheries Act and subsection 22(1) [as am. by SOR/93-133, s. 4] of the Fishery (General) Regulations, SOR/93-53 which were deemed to ensure the protection of these geophysical attributes. The pertinent paragraphs of the Killer Whales Protection Statement read as follows:
Human activities which could potentially destroy the geophysical attributes of critical habitat for these species, as identified in the Final Recovery Strategy, and the federal legislations, regulations and/or policies which would be used to provide protection against such destruction are:
• Industrial activities such as construction, drilling, pile driving, pipe-laying, and dredging, and construction of physical structures such as wharves and net pens for aquaculture
○ Protected under provisions of the Fisheries Act s. 35 and the Canadian Environmental Protection Act, 1999 (Part 7, Division 3). This protection is supported by processes under the Canadian Environmental Assessment Act.
• Fishing vessels using gear that drags along the bottom
○ Protected through provisions of the Fisheries Act or regulations made thereunder, in particular s. 22(1) of the Fishery (General) Regulations. This protection is supported by processes under the Fisheries and Oceans Canada policy on Managing the Impacts of Fishing on Sensitive Benthic Areas.
• Use of vessel anchors which may permanently damage the seabed, or which may serve to destroy a rubbing beach
○ Protected through provisions of the Fisheries Act s. 35, or of the Oceans Act s. 35 and/or s. 36. In addition, a Code of Conduct and outreach initiatives to inform and sensitise Canadians to the need to protect Resident Killer Whale habitat will continue to be developed and implemented.
[32] The difficulty in defining critical habitat in terms of geophysical attributes was that some of the most important elements of the critical habitat which had been identified in the recovery strategy were left without protection. The recovery strategy had indeed identified acoustic degradation, chemical and biological contamination and diminished prey availability as key components of the critical habitat of killer whales. Yet the Killer Whales Protection Statement did not consider these components as part of “critical habitat” for the purposes of protection under the SARA. Rather, the Killer Whales Protection Statement treated these components as “ecosystem features” to be dealt with through “legislative and policy tools”, and not under the SARA. The Killer Whales Protection Statement thus treated these components as follows:
While the Recovery Strategy identifies the critical habitat as a defined geophysical area, Fisheries and Oceans Canada (DFO) recognizes that other ecosystem features such as the availability of prey for foraging and the quality of the environment are important to the survival and recovery of Northern and Southern Resident Killer Whales. A variety of legislative and policy tools are available to manage and mitigate threats to these functions of the Resident Killer Whale critical habitat, to individuals and to populations.
• Disturbance
○ Threat management and mitigation is afforded under the Marine Mammal Regulations and the Whale Watching Guidelines developed cooperatively by industry and DFO.
• Degradation of the Acoustic Environment
○ Threat management and mitigation is afforded under the Marine Mammal Regulations, the Statement of Practice with Respect to the Mitigation of Seismic Sound in the Marine Environment, and protocols for military sonar use.
• Marine Environmental Quality
○ Threat management and mitigation is afforded under provisions of the Fisheries Act, or regulations made thereunder, and the Canadian Environmental Protection Act, 1999 or regulations made thereunder.
• Availability of Prey
○ Threat management and mitigation is afforded under the Fisheries Act or regulations made thereunder, supported by the Wild Salmon Policy and use of Integrated Fisheries Management Plans.
History of the litigation
[33] The respondents in this appeal challenged the lawfulness of the Killer Whales Protection Statement by initiating a judicial review application before the Federal Court in October of 2008, wherein they asked that Court to make various declarations, set aside the Killer Whales Protection Statement, and refer the matter back to the Minister for a new decision under section 58 of the SARA.
[34] In their application, the respondents argued that the critical habitat of the concerned killer whale populations included not only the geophysical elements of that habitat, but also all the other components identified in the recovery strategy. They further argued that, in a protection statement, the Minister could not resort to non-binding policy, prospective legislation or ministerial discretion.
[35] Before this judicial review application could be heard, the Minister reversed himself. Both he and the Minister of the Environment jointly issued a protection order under subsections 58(1) and (4) of the SARA, which order was registered on February 19, 2009 as the Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order, SOR/2009-68 (the Killer Whales Protection Order). Maps identifying the critical habitat areas contemplated by that order are attached in a schedule to these reasons. These are the same critical habitat areas as identified in the recovery strategy.
[36] Soon after this Order was published, the respondents in this appeal sought clarification as to the scope and meaning of the Order. In response, the Minister (a) asserted that the Killer Whales Protection Order was an optional alternative to the Killer Whales Protection Statement; (b) further asserted that policy and discretionary tools could be resorted to; and (c) did not give assurances to confirm that the Killer Whales Protection Order protected the biological features of critical habitat from destruction: reasons, at paragraph 44.
[37] The respondents in this appeal were unsatisfied and consequently filed a second judicial review application before the Federal Court. This second application challenged the practice of limiting the scope of a protection order made under subsections 58(1) and (4) of the SARA to geospatial areas and geophysical elements of critical habitat.
[38] Both judicial review applications were consolidated before the Federal Court after O’Reilly J. rejected the Minister’s motion to dismiss as moot the judicial review application challenging the Killer Whales Protection Statement. O’Reilly J. was satisfied that in light of the Killer Whales Protection Order, the application for judicial review challenging the Killer Whales Protection Statement was moot. However, he was also of the view that there was a serious issue as to whether that judicial review application should nevertheless be heard in the exercise of the Federal Court’s discretion in such circumstances; a discretion which, he opined, would be better exercised by the judge hearing both applications on the merits.
The reasons and judgment of the Federal Court
[39] The Federal Court Judge hearing both applications on their merits granted most of the declarations sought and provided detailed reasons in support thereof.
[40] Turning his attention to the standard of review, the Federal Court Judge found that since the issues raised were essentially questions of statutory interpretation, the correctness standard applied.
[41] As to the scope of “critical habitat” under the SARA, the Federal Court Judge concluded that the issue had been conclusively decided by Campbell J. of the Federal Court in Environmental Defence Canada v. Canada (Fisheries and Oceans), 2009 FC 878, 45 C.E.L.R. (3d) 161 (Environmental Defence).
[42] The issue in Environmental Defence mainly concerned the scope of the expression “critical habitat” for the purposes of inclusion in a recovery strategy under paragraphs 41(1)(c) and (c.1) of the SARA. The applicants in Environmental Defence submitted that the constituents of habitat—and by implication of critical habitat—for specified species “are an identifiable location and the attributes of that location”: Environmental Defence, at paragraph 46. Campbell J. agreed, and ruled that for the purposes of the SARA, the word “areas” in the definition of “habitat” set out in the SARA did not just connote a location, “but a location that includes its special identifiable features”: Environmental Defence, at paragraph 58. The order of Campbell J. in Environmental Defence was not appealed from by the Minister, who now accepts that both the location and the components of critical habitat are contemplated by the SARA.
[43] Since, in this case, the recovery strategy identified reduced availability of prey, environmental contaminants and physical and acoustic disturbance as components of the critical habitat of the concerned killer whale populations, the Federal Court Judge found that the Killer Whales Protection Order had to apply to all these components: reasons, at paragraphs 163–164 and 337–339. Moreover, in light of Environmental Defence, the Minister had in fact conceded this point before the Federal Court Judge: reasons, at paragraphs 159 and 163. By necessary implication, the Killer Whales Protection Statement was also flawed since it did not include these elements as critical habitat: reasons, at paragraphs 337–339.
[44] The Federal Court Judge then went on to reject the Minister’s contention that the declarations sought in regard to the Killer Whales Protection Order were beyond the jurisdiction of the Federal Court. The Minister had indeed submitted that the Killer Whales Protection Order was not a “decision” subject to judicial review; he argued that the order was rather a “regulation” within the meaning of the Statutory Instruments Act, R.S.C., 1985, c. S-22 [s. 2(1)], and that it was thus immune from judicial review. The Federal Court Judge was not persuaded, ruling instead that Parliament had not shielded decisions under subsection 58(5) of the SARA from judicial review through the use of a privative clause or otherwise. In his view, the SARA was clearly a justiciable statute that imposed duties on the Minister, and whose actions under that statute were subject to review before the Federal Court: reasons, at paragraphs 183–184.
[45] The Federal Court Judge also decided to hear the application concerning the Killer Whales Protection Statement even if the Killer Whales Protection Order had made that application moot. Applying the factors established in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Federal Court Judge concluded that, in view of the fundamental points of law raised by the proceedings, a quite live controversy between the parties did remain: reasons, at paragraphs 242–245. He also concluded that these points were of general importance for the interpretation and application of the SARA: reasons, at paragraphs 250–251.
[46] The Federal Court Judge then ruled that a competent minister may not resort to another federal statute as a substitute for a protection order unless that statute provides an equal level of legal protection for critical habitat as would be engaged through a protection order: reasons, at paragraphs 257 and 272. The Federal Court Judge made that ruling on the basis of a purposive reading of the pertinent provisions of the SARA; he concluded that Parliament had sought to limit ministerial discretion where the protection of critical habitat of endangered and threatened species was at issue: reasons, at paragraphs 277–280.
[47] The Federal Court Judge then went on to conclude that the Fisheries Act, and the regulations adopted under that statute, could not be used as a substitute for a protection order. His conclusion was based on the highly discretionary nature of the broad powers afforded to the Minister under the scheme of the Fisheries Act, including a broad discretion to authorize the destruction of fish habitat under subsection 35(2) and to attach conditions to a fishing licence under section 22 of the Fishery (General) Regulations: reasons, at paragraphs 320–321.
[48] The Federal Court Judge also discarded section 36 of the Fisheries Act—which prohibits the deposit of a deleterious substance into waters frequented by fish—on the basis that such deposits may nevertheless be authorized through regulations adopted “at Cabinet’s discretion”: reasons, at paragraph 325.
[49] The Federal Court Judge then went on to make 11 declarations of law. These declarations read as follows:
1. With respect to the Protection Statement application:
a. The Minister of Fisheries and Oceans erred in law in determining that the critical habitat of the resident killer whales was already legally protected by existing laws of Canada;
b. Section 58 of SARA requires that all elements of critical habitat be legally protected by the competent ministers;
c. Outreach programs, stewardship programs, voluntary codes of conduct or practice, voluntary protocols and/or voluntary guidelines and policy do not legally protect critical habitat within the meaning of section 58 of SARA, and it was unlawful for the Minister to have cited policy documents in the Protection Statement;
d. 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;
e. Prospective laws and regulations that are not yet in force do not legally protect critical habitat within the meaning of section 58 of SARA, and it was unlawful for the Minister to have cited provisions in the Protection Statement that are not yet in force;
f. Provincial laws do not legally protect critical habitat within the meaning of section 58 of SARA, and it was unlawful for the Minister to have cited provincial laws in the Protection Statement.
2. With respect to the Protection Order application:
a. The ministers acted unlawfully in limiting the application and scope of the Protection Order made under subsection 58(4) of SARA;
b. The ministers have a duty under section 58 to provide legal protection against destruction for all components of the resident killer whales’ critical habitat;
c. The ministers acted unlawfully when they limited the application and scope of the destruction prohibition in subsection 58(1) of SARA to certain components of critical habitat but not others;
d. It was an error of law for the ministers to limit the application and scope of the Protection Order to provide legal protection for geophysical parts of critical habitat only;
e. It was unlawful for the ministers to exclude the ecosystem features of resident killer whales’ critical habitat, including availability of prey and acoustic and environmental factors from the scope of the Protection Order.
The issues in this appeal
[50] Though the Minister of the Environment was also a respondent before the Federal Court, only the Minister of Fisheries and Oceans has appealed to this Court. Moreover, that Minister’s appeal only concerns one of the declarations made by the Federal Court Judge, namely declaration 1(d) providing that ministerial discretion does not legally protect critical habitat within the meaning of section 58 of the SARA, and that it was consequently unlawful for the Minister to have cited discretionary provisions of the Fisheries Act in the Killer Whales Protection Statement.
[51] The Minister raises the standard of review as a first ground of appeal. He submits that Parliament entrusted him with the responsibility to manage aquatic species under both the SARA and the Fisheries Act, and that, consequently, he is entitled to deference as to the interpretation of both these statutes.
[52] As a second ground of appeal, the Minister submits that he lawfully invoked the provisions of the Fisheries Act in the Killer Whales Protection Statement, and that he may resort to such provisions in any protection statement made under subsection 58(5) of the SARA.
[53] This appeal consequently raises the following questions:
a. What is the standard of review?
[54] In addition, as a preliminary matter, I must consider whether this appeal should be dismissed on the basis that the issues raised by the Minister are moot.
Preliminary issue: Should this appeal be dismissed on the ground that the issues raised by the Minister are moot?
[55] The Minister’s appeal concerns the Killer Whales Protection Statement, which statement was replaced by the Killer Whales Protection Order. As both O’Reilly J. and the Federal Court Judge concluded in this case, the issues which are raised by these proceedings and which concern the Killer Whales Protection Statement are clearly moot. Hence, should this Court entertain those issues?
[56] The Minister and the respondents are not pursuing this argument before this Court, but the fact that they are not raising it does not mean that this Court can simply ignore the matter. Reluctant as this Court is to decide a matter not fully argued before it, determining if the issues are moot and if so, whether they should nevertheless be decided, is a prerequisite to the disposition of this appeal.
[57] The choice of the appropriate test to apply in deciding whether a matter is moot is a question of law. The decision of whether to hear a moot proceeding is discretionary: Aktiebolaget Hässle v. Apotex Inc., 2008 FCA 88, 65 C.P.R. (4th) 5, at paragraph 11. The identification of the factors which must be considered in exercising that discretion is also a question of law: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paragraph 18.
[58] It cannot be disputed that the issues raised are moot. It is also clear from the Federal Court Judge’s reasons at paragraphs 236 to 252 that he identified the appropriate factors to consider in exercising his discretion to nevertheless hear these issues. In an appeal from such a judgment, should this Court review the exercise of the Federal Court Judge’s discretion on a standard of reasonableness or should this Court rather exercise anew judicial discretion and decide itself whether or not to hear the moot issues in appeal? In past appeals, this Court seems to have preferred to exercise anew the discretion: see Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311, at paragraphs 26–46.
[59] In Borowski v. Canada (Attorney General), above, at pages 358–363, and in Doucet-Boudreau v. Nova Scotia (Minister of Education), above, at paragraphs 18–22, the Supreme Court of Canada has outlined the following criteria for courts to consider in exercising discretion to hear a moot case:
a. the presence of an adversarial context;
b. the concern for judicial economy; and
c. the need for the Court to be sensitive to its role as the adjudicative branch in our political framework.
[60] Applying these factors, I conclude that the Federal Court Judge reasonably exercised his discretion to hear the issues relating to the Killer Whales Protection Statement. I also conclude that this Court should exercise its discretion to entertain those issues even though they are moot.
[61] These issues have been fully argued before both the Federal Court and this Court; and a very live controversy exists between the parties which will persist until they are finally decided.
[62] Judicial economy will be well served if this Court addresses the issues raised. They have been fully canvassed in these proceedings and they will likely arise in the future in the context of other protection statements under the SARA. It is thus appropriate to settle these issues now rather than to await another case which will require additional efforts and expenditures to pursue.
[63] The issues raised are of public importance, and their resolution is in the public interest. This case is the first to be heard by this Court concerning the scope of a protection statement under the SARA. Many other protection statements are being prepared and may have been issued for other endangered or threatened species. Consequently, both the Minister and the respondents seek guidance as to the interpretation and application of section 58 of the SARA.
[64] Finally, this Court is neither departing from its traditional role as an adjudicator nor intruding upon the legislative or executive sphere by deciding to hear this appeal. The issues raised are all questions of statutory interpretation. Moreover, the Minister—acting as a member of the Executive branch of government—seeks the opinion of this Court on these issues.
The standard of review
The Minister’s position
[65] At its core, the principal question before this Court concerns the meaning of the words “legally protected by provisions in, or measures under, this or any other Act of Parliament” found in subsection 58(5) of the SARA. That is a question of statutory interpretation, and that is not disputed by the Minister.
[66] However, the Minister submits that Parliament has entrusted him with the responsibility to manage the regulatory schemes under the SARA and the Fisheries Act, and that consequently, his interpretation of section 58 of the SARA—and of the provisions of the Fisheries Act and of its regulations as they relate to that section—should be given deference.
[67] The Minister relies for this proposition on Dunsmuir and recent decisions of the Supreme Court of Canada which have all clearly emphasized the deference which courts must show to an administrative tribunal when it interprets a provision of its enabling (or “home”) statute or statutes closely connected to its functions. The Minister notably relies on Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3 (Celgene), at paragraphs 33–34; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (Mowat), at paragraphs 15–27; and Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160 (Smith), at paragraph 26. In this regard, I note that the standard which applies when the interpretation of a statute by a government official is raised in a judicial review proceeding has been questioned by this Court following Dunsmuir: see Public Mobile Inc. v. Canada (Attorney General), 2011 FCA 194, [2011] 3 F.C.R. 344, at paragraph 35 and Toussaint v. Canada (Attorney General), 2011 FCA 213, [2013] 1 F.C.R. 374, at paragraph 19.
[68] The Minister also finds support for his position in Adam v. Canada (Environment), 2011 FC 962, sub nom. Athabasca Chipewyan First Nation v. Canada (Environment), [2013] 2 F.C.R. 201 (Adam), a recent decision of the Federal Court. The applicants in Adam were asking the Court to order the Minister of the Environment to (a) finalize a recovery strategy under the SARA for the boreal caribou located in northeastern Alberta and (b) recommend the adoption of an emergency protection order for these caribou under subsection 80(2) of the SARA. Without proceeding with a standard of review analysis, the Court in Adam concluded—based on its understanding of Dunsmuir and Smith—that the Minister of the Environment’s interpretation of subsection 80(2) of the SARA was subject to review under a reasonableness standard. Since that minister was interpreting his “home” statute (the SARA), and since no constitutional question, no question of law of central importance to the legal system as a whole, and no jurisdictional question was raised by the proceedings, the Minister of the Environment’s interpretation of subsection 80(2) of the SARA was reviewed on a standard of reasonableness: Adam, at paragraph 40.
[69] The Minister submits that as the “competent minister” with respect to aquatic species, he is entitled to the same deference as to his interpretation of the pertinent provisions of the SARA. Likewise, as the minister responsible for the Fisheries Act, deference should also be extended to his interpretation of that statute and of its regulations. In short, the Minister submits that pursuant to the most recent Supreme Court of Canada jurisprudence, a presumption of deference has been extended to administrative decision makers—such as himself—when they interpret their enabling (or “home”) statutes.
[70] I disagree with the Minister. For the reasons which follow, I have concluded that no deference is owed by this Court to the Minister as to the interpretation of the relevant provisions of the SARA or of the Fisheries Act and its regulations.
Historical and constitutional foundations of judicial review
[71] It is useful to set out briefly the foundations of judicial review in Canada. The two guiding principles of the British constitution—on which the Constitution of Canada is modelled—are the sovereignty of Parliament and the rule of law. These constitutional principles were largely developed as a result of the English Civil War of the 17th Century and its aftermath. This long, difficult and often bloody struggle between the Crown and Parliament culminated in the victory of the Parliamentarians in the so-called “Glorious Revolution”, which ensured the accession to the throne of William and Mary and led to the adoption of the Bill of Rights of 1688 [An Act declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, 1688 (U.K.), 1 Will. & Mary, Sess. 2, c. 2], later followed by the Act of Settlement, 1700 [(U.K.), 12 & 13 Will. III, c. 2].
[72] Through these historical events, the Crown’s powers were made subject to the laws of Parliament. Prior to the Bill of Rights of 1688, the Crown had asserted that it could “Assum[e] and Exercis[e] a Power of Dispensing with and Suspending of Lawes and the Execution of Lawes without Consent of Parlyament”: Preamble to the Bill of Rights of 1688. While the Bill of Rights of 1688 firmly consecrated the principle of Parliamentary sovereignty, it also implicitly empowered the courts, and particularly the common law courts, to both interpret Parliament’s laws and censure unlawful behaviour on the part of Crown officials. This was further entrenched by the subsequent Act of Settlement, 1700 which recognized the independence of the judiciary.
[73] The Bill of Rights of 1688, the Act of Settlement, 1700, and the constitutional principles flowing from those documents thus ensured that the Crown and its officials would be thereafter bound by Parliament’s laws as interpreted by the independent common law courts: see Dussault and Borgeat, Administrative Law: A Treatise, 2nd edition, Volume 4, Toronto: Carswell, 1990, at pages 12–13 and 27–31; A. L. Goodhart and R. E. Megarry, “Judicial Review and the Rule of Law: Historical Origins” (1956), 72 L.Q.R. 345, at page 362; Lord Hailsham of St. Marylebone, “Democracy and Judicial Independence” (1979), 28 U.N.B.L.J. 7, at page 9.
[74] The principles of Parliamentary sovereignty and of the rule of law are still today at the heart of judicial review: Dunsmuir, at paragraphs 27–30.
[75] With the expansion of state intervention in the first part of the 20th Century, Parliament set up numerous intricate legislative schemes seeking to achieve complex economic and social goals. It delegated more and more powers to various administrative bodies entrusted with the authority to implement these schemes. Parliament also created numerous administrative tribunals to adjudicate the disputes resulting from these complex schemes. In some cases, Parliament sought to protect these administrative bodies and tribunals from interference by the courts. This was principally achieved by the inclusion of various privative clauses in the legislation enabling these administrative bodies and tribunals to carry out their functions.
[76] Though the courts throughout the Commonwealth fiercely resisted these curtailments of their authority, they eventually relented in deference to the principle of Parliamentary sovereignty. However, the courts always maintained a right—albeit limited—to control administrative decisions on the ground that the rule of law required it in certain appropriate circumstances, notably in cases of excess of jurisdiction, abuse of power or failure to comply with principles of natural justice.
The modern Canadian approach to judicial review of questions of law
[77] The modern Canadian approach to judicial review of questions of law involving administrative tribunals can be ascertained from Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227 (C.U.P.E.) and Blanchard v. Control Data Canada Ltd. et al., [1984] 2 S.C.R. 476 (Control Data). Justice Lamer [as he then was] summarized as follows the Canadian approach in Control Data, at pages 492–493:
In principle, where there is a privative clause the superior courts should not be able to review errors of law made by the administrative tribunals. However, it is now settled that some errors of law can cause the arbitrator to lose his jurisdiction. The debate turns on the question of which errors of law result in the loss of jurisdiction. Contrary to the decision of Lord Denning in Pearlman v. Keepers and Governors of Harrow School, [1979] 1 All E.R. 365, where he said (at p. 372) that “no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends” (subsequently disapproved by the Privy Council in South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union, [1980] 3 W.L.R. 318, and Re Racal Communications Ltd., [1980] 2 All E.R. 634), this Court has tended since Nipawin, supra, [Service Employees’International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382] and C.U.P.E., supra, to avoid intervening when the decision of the administrative tribunal was reasonable, whether erroneous or not. In other words, only unreasonable errors of law can affect jurisdiction. The following extract from C.U.P.E., supra, at p. 237, frequently referred to in later cases, has become the classic statement of the approach taken by this Court:
Put another way, was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?
This is a very severe test and signals a strict approach to the question of judicial review. It is nevertheless the test which this Court has applied and continues to apply …. [Emphasis in original.]
[78] Thus, if Parliament (or a provincial legislature) has adopted a privative clause providing that the decisions of an administrative tribunal—or of any other administrative decision maker—are not subject to judicial review for error of law, the courts should strive to respect that legislative intent and should only interfere where a given decision is unreasonable.
[79] In subsequent cases, the Supreme Court of Canada applied this approach, even in the absence of a privative clause, insofar as certain factors set out in the enabling legislation made the legislative intent clear.
[80] In Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557 (Pezim) and in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 (Southam)—both of which involved a statutory appeal—the Supreme Court of Canada did not apply a correctness standard to questions of law, but rather deferred to the original decision-maker’s legal analysis. In both cases, the application of the reasonableness standard flowed from legislative intent. As noted by Justice Iacobucci in Pezim, at pages 589–590:
The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on the administrative tribunal. In answering this question, the courts have looked at various factors. Included in the analysis is an examination of the tribunal’s role or function. Also crucial is whether or not the agency’s decisions are protected by a privative clause. Finally, of fundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved.
[81] In Pezim and Southam, privative clauses were found to be only one of many factors which may be considered for the purpose of ascertaining a legislative intent to limit the scope of a court’s power to review an administrative tribunal’s decision on questions of law. Factors such as the nature of the problem before the tribunal, the wording of the enabling (or “home”) statute, the purpose of that statute, and the areas of expertise could be considered to ascertain legislative intent, in addition to the presence or absence of a privative clause. Consequently, a so-called “pragmatic and functional” approach—similar to the one developed in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 for the identification of jurisdictional issues—was required in order to ascertain the scope of judicial review of an administrative tribunal’s decision: Pezim, at page 592.
[82] Similar considerations were expressed in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraph 26: “The central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed.” This was also reiterated in Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at paragraph 21: “the pragmatic and functional approach inquires into legislative intent, but does so against the backdrop of the courts’ constitutional duty to protect the rule of law.”
Dunsmuir and the subsequent case law
[83] The Minister submits in this appeal that in view of the responsibilities conferred on him by the SARA and the Fisheries Act, his interpretation of those statutes is not susceptible to judicial review on a standard of correctness. The Minister’s position implies that the standard of review analysis ends as soon as Parliament confers on a minister the responsibility to administer a federal statute. This, the Minister submits, is the conclusion which must be drawn from the recent jurisprudence of the Supreme Court of Canada. I disagree.
[84] The Supreme Court of Canada, in Dunsmuir, and subsequently in Celgene, Mowat and Smith, has not repudiated the relevance of legislative intent, nor discarded the relevance of a standard of review analysis, as the Minister implies. This is not what these decisions stand for. As noted in Dunsmuir, at paragraph 30, “determining the applicable standard of review is accomplished by establishing legislative intent.”
[85] As Justices Bastarache and LeBel jointly noted in Dunsmuir, at paragraphs 27 to 31, judicial review is intimately connected with the preservation of the rule of law and with maintaining legislative supremacy. While developing a more coherent and workable framework for judicial review—notably by merging the “patently unreasonable” and “reasonableness simpliciter” standards of review into a single “reasonableness” standard—Dunsmuir still requires that a proper standard of review analysis be carried out in appropriate circumstances.
[86] For this purpose, Dunsmuir has set out a two-step process: first, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular question; second, where the first inquiry proves unfruitful, courts must proceed to a standard of review analysis involving the factors making it possible to identify the proper standard of review: Dunsmuir, at paragraph 62.
[87] In the case of an administrative tribunal exercising adjudicative functions in the context of an adversarial process, and explicitly or implicitly empowered by its enabling statute to decide questions of law, judicial deference will normally extend to its interpretation of its enabling statute or of a statute closely connected to its functions. This conclusion was drawn in Dunsmuir on the basis of existing case law, which had already extensively canvassed the standard of review applicable to adjudicative administrative tribunals. As stated in Dunsmuir, at paragraph 54:
Guidance with regard to the questions that will be reviewed on a reasonableness standard can be found in the existing case law. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157, at para. 48; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 39. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context: Toronto (City) v. C.U.P.E., at para. 72. Adjudication in labour law remains a good example of the relevance of this approach. The case law has moved away considerably from the strict position evidenced in McLeod v. Egan, [1975] 1 S.C.R. 517, where it was held that an administrative decision maker will always risk having its interpretation of an external statute set aside upon judicial review. [Emphasis added.]
[88] However, deference on a question of law will not always apply, notably where the administrative body whose decision or action is subject to review is not acting as an adjudicative tribunal, is not protected by a privative clause, and is not empowered by its enabling legislation to authoritatively decide questions of law. A standard of review analysis is still required in appropriate cases. As noted by Justices Bastarache and LeBel at paragraphs 63 and 64 of Dunsmuir:
The existing approach to determining the appropriate standard of review has commonly been referred to as “pragmatic and functional”. That name is unimportant. Reviewing courts must not get fixated on the label at the expense of a proper understanding of what the inquiry actually entails. Because the phrase “pragmatic and functional approach” may have misguided courts in the past, we prefer to refer simply to the “standard of review analysis” in the future.
The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.
[89] What Dunsmuir has made clear is that “[a]n exhaustive review is not required in every case to determine the proper standard of review”: Dunsmuir, at paragraph 57. Further, Dunsmuir has also made clear that “at an institutional level, adjudicators… can be presumed to hold relative expertise in the interpretation of the legislation that gives them their mandate, as well as related legislation that they might often encounter in the course of their functions”: Dunsmuir, at paragraph 68 (emphasis added); Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paragraph 53.
[90] Consequently, since Dunsmuir, unless the situation is exceptional, the interpretation by an adjudicative tribunal of its enabling statute or of statutes closely related to its functions should be presumed to be a question of statutory interpretation subject to deference on judicial review: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 (Alberta Teachers’ Association), at paragraphs 34 and 41, per Justice Rothstein.
[91] The decisions of Celgene, Mowat, and Smith relied upon by the Minister are consistent with Dunsmuir and with the relevance of legislative intent. Properly understood, these cases do not support the Minister’s position as to the standard of review.
[92] Celgene concerned the interpretation of an expression found in provisions of the Patent Act, R.S.C., 1985, c. P-4 by the Patented Medicine Prices Review Board. That issue of statutory interpretation was reviewed and decided on a standard of correctness. However, a question was raised as to whether correctness was the operative standard in the circumstances. This question was not answered by the Court in the light of its conclusion that the Board’s decision was unassailable under a standard of review based either on correctness or on reasonableness. The Minister’s reliance on this decision is therefore misplaced.
[93] Mowat concerned a decision to award legal costs made by the Canadian Human Rights Tribunal acting in its adjudicative capacity under the Canadian Human Rights Act [R.S.C., 1985, c. H-6] following an adversarial process. In issue in that case was the Tribunal’s interpretation of provisions in the Canadian Human Rights Act. Justices LeBel and Cromwell concluded that, under Dunsmuir, deference should normally be extended to decisions of adjudicative tribunals as to the interpretation of their enabling statutes. Applying a reasonableness standard of review, Justices LeBel and Cromwell finally concluded that the Canadian Human Rights Tribunal’s interpretation of its enabling legislation was not sustainable. Again, that case does not support the Minister’s position since it concerned an adjudicative tribunal.
[94] Smith concerned a decision to award costs made by an Arbitration Committee established under Part V of the National Energy Board Act, R.S.C., 1985, c. N-7. The issue in that case was the Arbitration Committee’s interpretation of the word “costs” in subsection 99(1) [as am. by S.C. 1990, c. 7, s. 25(F)] of the National Energy Board Act. Justice Fish, for the majority, ruled that since the Arbitration Committee was interpreting its enabling statute, a reasonableness standard of review applied in light of the principles set out in Dunsmuir. This conclusion flowed from Parliament’s intent, as noted at paragraph 31 of this decision:
… in fixing the costs that must be paid by expropriating parties, the Committee has been expressly endowed by Parliament with a wide “margin of appreciation within the range of acceptable and rational solutions” (Dunsmuir, at para. 47): the only costs that must be awarded under s. 99(1) are those “determined by the Committee to have been reasonably incurred” [emphasis in original]. This statutory language reflects a legislative intention to vest in Arbitration Committees sole responsibility for determining the nature and the amount of the costs to be awarded in the disputes they are bound under the NEBA to resolve. [Emphasis added.]
[95] The analytical framework and the presumption set out in Dunsmuir have been recently described as follows by Justice Fish in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, above, at paragraphs 35 and 36:
An administrative tribunal’s decision will be reviewable for correctness if it raises a constitutional issue, a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’”, or a “true question of jurisdiction or vires”. It will be reviewable for correctness as well if it involves the drawing of jurisdictional lines between two or more competing specialized tribunals (Dunsmuir, at paras. 58–61; Smith, at para. 26; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (“Toronto City”), at para. 62, per LeBel J.).
The standard of reasonableness, on the other hand, normally prevails where the tribunal’s decision raises issues of fact, discretion or policy; involves inextricably intertwined legal and factual issues; or relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” (Dunsmuir, at paras. 51 and 53–54; Smith, at para. 26).
[96] This analytical framework and this presumption must be understood in the context in which they were developed: they concern adjudicative tribunals. The presumption is derived from the past jurisprudence which had extensively considered the standard of review applicable to the decisions of such tribunals. By empowering an administrative tribunal to adjudicate a matter between parties, Parliament is presumed to have restricted judicial review of that tribunal’s interpretation of its enabling statute and of statutes closely connected to its adjudicative functions. That presumption may however be rebutted if it can be found that Parliament’s intent is inconsistent with the presumption.
[97] The Minister is inviting this Court to expand the above-described Dunsmuir analytical framework and presumption to all administrative decision makers who are responsible for the administration of a federal statute. I do not believe that Dunsmuir and the decisions of the Supreme Court of Canada which followed Dunsmuir stand for this proposition.
[98] What the Minister is basically arguing is that the interpretation of the SARA and of the Fisheries Act favoured by his Department and by the government’s central agencies, such as the Department of Justice, should prevail. The Minister thus seeks to establish a new constitutional paradigm under which the Executive’s interpretation of Parliament’s laws would prevail insofar as such interpretation is not unreasonable. This harks back to the time before the Bill of Rights of 1688 where the Crown reserved the right to interpret and apply Parliament’s laws to suit its own policy objectives. It would take a very explicit grant of authority from Parliament in order for this Court to reach such a far-reaching conclusion.
[99] The issues in this appeal concern the interpretation of a statute by a minister who is not acting as an adjudicator and who thus has no implicit power to decide questions of law. Of course, the Minister must take a view on what the statute means in order to act. But this is not the same as having a power delegated by Parliament to decide questions of law. The presumption of deference resulting from Dunsmuir, which was reiterated in Alberta Teachers’ Association, at paragraphs 34 and 41, does not extend to these circumstances. The standard of review analysis set out at paragraphs 63 and 64 of Dunsmuir must thus be carried out in the circumstances of this case in order to ascertain Parliament’s intent.
[100] In other words, does Parliament intend to shield the Minister’s interpretation of the pertinent provisions of the SARA and of the Fisheries Act from judicial review on a standard of correctness? On the basis of the standard of review analysis further set out below, I answer in the negative.
Standard of review analysis
[101] First, neither the SARA nor the Fisheries Act contains a privative clause. This is a strong indication of Parliament’s intent not to shield the Minister’s legal interpretation of these statutes from judicial review.
[102] Second, as provided in section 57 of the SARA, the purpose of section 58 is “to ensure that … all of the critical habitat is protected”. Hence, under subsection 58(5), the Minister “must” make a protection order to protect identified critical habitat unless that habitat is “legally protected by provisions in, or measures under, this or any other Act of Parliament”. These are all indications that Parliament has greatly restricted the Minister’s discretion. It would be strange indeed if the Minister’s interpretation of such restrictive legislative language could somehow prevail in order to curtail Parliament’s intent in adopting these provisions. Here again, Parliament’s intent not to shield the Minister’s legal interpretation from judicial review appears clear.
[103] Third, the Minister acts in an administrative capacity, and not as an adjudicator, when preparing and issuing a protection statement under subsection 58(5) of the SARA. The fact that Parliament has not had to set up an independent administrative tribunal to adjudicate legal issues under the SARA—including legal issues resulting from section 58—is a further indication of the legislative intent to empower the courts with authority to adjudicate these issues on a standard of correctness. The question in issue is one of statutory interpretation which the courts are best equipped to answer in the circumstances of this case.
[104] Finally, though the Minister—acting on the advice of the officials of the Department of Fisheries and Oceans—can certainly claim expertise in the management of the fisheries and of fish habitat, this does not confer on the Minister expertise in the interpretation of statutes. Expertise in fisheries does not necessarily confer special legal expertise to interpret the statutory provisions of the SARA or of the Fisheries Act.
[105] For these reasons, the issues of statutory interpretation raised by this appeal will be reviewed and determined on a standard of correctness.
Did the Minister err by relying on the provisions of the Fisheries Act and of its regulations in making the Killer Whales Protection Statement?
The Minister’s position
[106] The Minister concedes that the protection of the critical habitat of endangered and threatened aquatic species under the SARA is not discretionary. However, the Minister submits that Parliament intended that he be allowed some flexibility as to how to provide that compulsory protection. The Minister further submits that such flexibility would not exist if the conclusions of the Federal Court Judge are upheld by this Court.
[107] The Minister adds that not every instrument relied on in a protection statement need be a “legal provision” which provides mandatory, enforceable protection against the destruction of critical habitat. This alternative approach would give him a large degree of flexibility in determining how that protection should be best provided. This, the Minister submits, is what Parliament intended. Had Parliament intended only a legal prohibition from destruction to protect critical habitat—as it has done for residences and the killing, harming or harassing of individuals—it would not have provided the alternative of a protection statement. Consequently, protection measures relied upon in a protection statement need not be prohibitions from destruction.
[108] The Minister also submits that he is seeking this flexibility not to undercut the protection of critical habitat or to provide protection which is inferior to what would be provided under a prohibition order. Rather, the Minister argues that there are other methods which can protect the critical habitat from destruction. The Minister specifically identifies provisions of the Fisheries Act as appropriate alternatives to a protection order. While the Minister recognizes that he has unfettered discretion under the Fisheries Act to manage fisheries, “where he has undertaken to comply with the SARA critical habitat protection requirements by reliance on the provisions of the Fisheries Act, the discretion will be exercised taking into account that reliance” (appellant’s memorandum, at paragraph 47).
[109] The difficulty I have with the Minister’s position is that it is not compatible with the provisions of the SARA, which clearly require compulsory “legal protection” for all identified critical habitat of listed endangered or threatened aquatic species. If I were to accept the Minister’s position, the compulsory non-discretionary critical habitat protection scheme under the SARA would be effectively replaced by the discretionary management scheme of the Fisheries Act. That is not what the SARA provides for.
Interpretation of the pertinent provisions of the SARA
[110] The preamble of the SARA recognizes that “the habitat of species at risk is key to their conservation”. In this respect, section 57 of the SARA—which is an interpretative provision—provides that all critical habitat identified in a recovery strategy must be protected within 180 days after the recovery plan is included in the public registry:
| Purpose |
57. The purpose of section 58 is to ensure that, within 180 days after the recovery strategy or action plan that identified the critical habitat referred to in subsection 58(1) is included in the public registry, all of the critical habitat is protected by (a) provisions in, or measures under, this or any other Act of Parliament, including agreements under section 11; or (b) the application of subsection 58(1). [Emphasis added.] |
[111] Section 58 of the SARA adds that this protection must be achieved through legally enforceable measures. The pertinent provisions of section 58 read as follows:
| Destruction of critical habitat |
58. (1) Subject to this section, no person shall destroy any part of the critical habitat of any listed endangered species or of any listed threatened species — or of any listed extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada — if … (b) the listed species is an aquatic species; … |
| Application |
(4) … subsection (1) applies in respect of the critical habitat or portion of the critical habitat, as the case may be, specified in an order made by the competent minister. |
| Obligation to make order or statement |
(5) Within 180 days after the recovery strategy or action plan that identified the critical habitat is included in the public registry, the competent minister must, … with respect to all of the critical habitat or any portion of the critical habitat … (a) make the order referred to in subsection (4) if the critical habitat or any portion of the critical habitat is not legally protected by provisions in, or measures under, this or any other Act of Parliament, including agreements under section 11; or (b) if the competent minister does not make the order, he or she must include in the public registry a statement setting out how the critical habitat or portions of it, as the case may be, are legally protected. [Emphasis added.] |
[112] The proper approach to the interpretation of these statutory provisions consists in determining the intent of Parliament according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the SARA as a whole: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at paragraph 10; see also Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 21.
[113] The meaning of the word “protect” is defined as follows in the Canadian Oxford Dictionary, 2nd edition [Toronto: Oxford University Press, 2004]: “attempt to preserve (a threatened plant or animal species) by legislating against hunting, collecting, etc.”; “restrict by law access to or development of (land) in order to preserve its wildlife or its undisturbed state.” Likewise, the word “protéger” is defined as follows in the Le Nouveau Petit Robert [Paris : Dictionnaires Le Robert, 2006] : “Rendre inefficaces les efforts pour compromettre, faire disparaître (qqch.). → garantir, sauvegarder…. Couvrir de manière à intercepter ce qui peut nuire, à mettre à l’abri des chocs, des agents atmosphériques, du regard d’autrui. → abriter, défendre, garantir, préserver.”
[114] In view of these dictionary definitions, it can safely be concluded that Parliament’s intent was to avoid interference with and destruction of critical habitat. We are far removed from the concept of critical habitat management advanced by the Minister. Moreover, the juxtaposition of the word “legally” (légalement) with the word “protected” (protégés) to form the expression “legally protected” (protégés légalement) leaves little ambiguity as to the intent of Parliament: critical habitat must be preserved through legally enforceable measures.
[115] A legal protection scheme is not a regulatory management scheme. Had Parliament’s intent been to authorize the Minister to regulate critical habitat of aquatic species through existing regulatory schemes—such as the Fisheries Act—it would not have adopted a provision requiring the compulsory non-discretionary legal protection of that habitat.
[116] This textual analysis is reinforced by a contextual and purposive analysis.
[117] Section 57 of the SARA provides in no uncertain language that the purpose of section 58 is to ensure that all the critical habitat is protected by provisions in, or measures under, an Act of Parliament or by a protection order issued under subsections 58(1) and (4) of the SARA. Surely this is an indication that there must be some equivalence between the two contemplated means of protection. They need not be the same, but surely they must have the same objective. Pursuant to subsection 58(1), the objective of a protection order is to ensure that “no person … destroy any part of the critical habitat of any listed endangered species or of any listed threatened species … if … the listed species is an aquatic species”. Provisions in, or measures under, an Act of Parliament should thus—in principle—achieve the same objective if they are to be resorted to as a substitute to a protection order.
[118] The Minister however cites the reference to “agreements under section 11” found in paragraph 58(5)(a) of the SARA. He concludes from this reference that Parliament’s intent was to allow non-compulsory discretionary measures as alternatives to a protection order. The Minister’s argument, based on this reference, is misguided. Section 11 conservation agreements are simply referred at paragraph 58(5)(a) as examples of alternative measures which may be taken to protect critical habitat from destruction. However, if a section 11 conservation agreement is to constitute a valid alternative to a protection order, it must ensure that the critical habitat is “legally protected” from destruction.
[119] There may be a wide variety of conservation agreements under section 11 of the SARA. Subsection 11(2) identifies agreements providing “measures with respect to (a) monitoring the status of species; (b) developing and implementing education and public awareness programs; (c) developing and implementing recovery strategies, action plans and management plans; (d) protecting the species’ habitat, including its critical habitat; or (e) undertaking research projects in support of recovery efforts for the species”. Only a section 11 conservation agreement under paragraph 11(2)(d) protecting a species critical habitat could qualify under section 58, and only insofar as that agreement legally protects that habitat from destruction through non-discretionary means. Were it otherwise, the Minister could simply “contract himself out” of section 58, which is an absurd proposition.
[120] Sections 74 and 77 of the SARA also support the view that the provisions in, or measures under, an Act of Parliament should achieve the same objective as a protection order if they are to be accepted as a substitute to such an order.
[121] Section 74 of the SARA restricts the authority of a “competent minister”—including the appellant Minister in this case—from entering into an agreement, issuing a permit or licence or making an order under another Act of Parliament—such as the Fisheries Act—authorizing a person to engage in an activity “affecting” the critical habitat of a listed wildlife species unless (a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons; (b) the activity benefits the species or is required to enhance its survival; or (c) affecting the species is incidental to the carrying out of the activity: paragraph 74(a) and subsection 73(2) of the SARA.
[122] Even in such limited circumstances, the agreement may be entered into, or the permit issued, pursuant to section 74 only if the competent minister is of the opinion that all reasonable alternatives have been considered and the best solution has been adopted, measures have been taken to minimize the impact of the activity, and the activity will not jeopardize the survival or recovery of the species: paragraph 74(a) and subsection 73(3) of the SARA.
[123] Moreover, subsection 77(1) of the SARA provides that a person or body—other than a “competent minister”—authorized under any Act of Parliament to issue or approve a licence, a permit or any other authorization for an activity that may result in the destruction of critical habitat of a listed wildlife species may only proceed after consulting the competent minister and considering reasonable alternatives. However, where the critical habitat is subject to section 58—such as the critical habitat of listed endangered or threatened aquatic species—subsection 77(2) of the SARA provides, for greater certainty, that section 58 applies even though such a licence, permit or other authorization has been issued. It is noteworthy that subsection 77(2) refers to section 58 of the SARA as a whole, including both a protection order made under subsections 58(1) and (4), and a protection statement made under paragraph 58(5)(b), thus emphasizing that both measures seek to protect critical habitat from destruction.
[124] It is apparent from the overall structure of the SARA that critical habitat of species subject to section 58—such as listed endangered or threatened aquatic species—cannot be destroyed or detrimentally affected through a permit or other authorization issued in application of section 74 or 77 of the SARA. This is another indication that the purpose of section 58—under a protection order or through statutory provisions or measures identified in a protection statement—is to protect critical habitat from destruction, including from destruction resulting from activities authorized under federal permits, licences or authorizations issued or entered into under Acts of Parliament.
[125] In conclusion, a textual, contextual and purposive analysis of section 58 of the SARA shows that Parliament is precisely seeking to avoid the destruction of identified critical habitat of listed endangered and threatened aquatic species though any means, including through activities authorized under discretionary permits or licences. Consequently, a provision in, or a measure under, an Act of Parliament only legally protects critical habitat for the purposes of section 58 if that provision or measure prevents the destruction of critical habitat through legally enforceable means which are not subject to ministerial discretion.
Section 35 of the Fisheries Act
[126] I will now turn to the Fisheries Act to ascertain if the provisions of that statute may be relied upon by the Minister for the purposes of section 58 of the SARA.
[127] Subsection 35(1) of the Fisheries Act prohibits any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat. However, subsection 35(2) allows the Minister to authorize the alteration, disruption or destruction of fish habitat under any conditions he deems appropriate. The prohibitions set out in subsection 35(1), when read in conjunction with subsection 35(2), thus constitute a legal means whereby the Minister is enabled to manage and control the alteration, disruption or destruction of fish habitat. In other words, subsection 35(2) allows the Minister to issue a permit to a person to engage in conduct harmful to fish habitat that would otherwise contravene subsection 35(1): Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 477, at paragraph 49.
[128] The provision reads as follows:
| Harmful alteration, etc., of fish habitat |
35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat. |
| Alteration, etc., authorized |
(2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act. |
[129] In the Minister’s submission, it “is irrelevant” that subsection 35(2) allows for the alteration, disruption or destruction of fish habitat, since “the mere possibility of a future authorization can not negate the fact that s. 35(1) provides habitat protection”: appellant’s memorandum, at paragraph 51. He adds that “[a]lthough the Minister’s discretion under the Fisheries Act is generally very broad, where the Minister has relied on the protections provided by the Fisheries Act to meet the requirements of the SARA, that reliance will guide the exercise of discretion to ensure that critical habitat remains protected”: appellant’s memorandum, at paragraph 2.
[130] The Minister reads subsection 35(1) in isolation from subsection 35(2). However, both subsections are closely related and interdependent; they must be read and understood together. There is no dispute that the protection offered fish habitat under subsection 35(1) may be waived at the discretion of the Minister acting under subsection 35(2). Consequently, this provision cannot ensure that the critical habitat of endangered or threatened aquatic species is “legally protected” under the meaning of section 58 of the SARA.
[131] The Minister—through his counsel—states that he intends not to use his discretion under subsection 35(2) of the Fisheries Act to authorize the destruction of critical habitat. However, he does not explain how his intent can be legally enforced should he change his mind in the future for some presumably good reason; nor does he explain how his current intent would bind his successors. Intent not to use discretion is not legally enforceable. A mere intent does not ensure that critical habitat is “legally protected” under the meaning of section 58 of the SARA.
Section 36 of the Fisheries Act
[132] Section 36 of the Fisheries Act is meant to prevent the pollution of water frequented by fish—which includes marine animals—by prohibiting any person from depositing deleterious substances of any type in such water or in any place under any conditions where the deleterious substances may enter such water. However, subsection 36(4) of the Fisheries Act allows for the deposit of wastes, pollutants and deleterious substances in such waters or places in a quantity or concentration and under the conditions authorized by regulation made by the Governor in Council under any Act of Parliament or under subsection 36(5) of the Fisheries Act.
[133] The pertinent provisions of section 36 of the Fisheries Act read as follows:
| 36. … |
|
| Deposit of deleterious substance prohibited |
(3) Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water. |
| Deposits authorized by regulation |
(4) No person contravenes subsection (3) by depositing or permitting the deposit in any water or place of (a) waste or pollutant of a type, in a quantity and under conditions authorized by regulations applicable to that water or place made by the Governor in Council under any Act other than this Act; or (b) a deleterious substance of a class, in a quantity or concentration and under conditions authorized by or pursuant to regulations applicable to that water or place or to any work or undertaking or class thereof, made by the Governor in Council under subsection (5). |
| Regulations for authorizing certain deposits |
(5) The Governor in Council may make regulations for the purpose of paragraph (4)(b) prescribing (a) the deleterious substances or classes thereof authorized to be deposited notwithstanding subsection (3); (b) the waters or places or classes thereof where any deleterious substances or classes thereof referred to in paragraph (a) are authorized to be deposited; (c) the works or undertakings or classes thereof in the course or conduct of which any deleterious substances or classes thereof referred to in paragraph (a) are authorized to be deposited; (d) the quantities or concentrations of any deleterious substances or classes thereof referred to in paragraph (a) that are authorized to be deposited; (e) the conditions or circumstances under which and the requirements subject to which any deleterious substances or classes thereof referred to in paragraph (a) or any quantities or concentrations of those deleterious substances or classes thereof are authorized to be deposited in any waters or places or classes thereof referred to in paragraph (b) or in the course or conduct of any works or undertakings or classes thereof referred to in paragraph (c); and (f) the persons who may authorize the deposit of any deleterious substances or classes thereof in the absence of any other authority, and the conditions or circumstances under which and requirements subject to which those persons may grant the authorization. |
[134] The principal regulations made under subsection 36(5) of the Fisheries Act are the Metal Mining Effluent Regulations, SOR/2002-222, and the Pulp and Paper Effluent Regulations, SOR/92-269.
[135] The Metal Mining Effluent Regulations allow the deposit of mining effluent that contain deleterious substances into waters frequented by fish insofar as (a) the concentration of the deleterious substance in the effluent does not exceed the authorized limits set out in the regulations; (b) the pH of the effluent is equal to or greater than 6.0 but is not greater than 9.5; and (c) the deleterious substance is not an acutely lethal effluent. The authorization is subject to numerous conditions set out in the Regulations and which concern in particular environmental effects monitoring, effluent monitoring, and reporting.
[136] The Pulp and Paper Effluent Regulations allow, for the purpose of paragraph 36(4)(b) of the Fisheries Act, the deposit in any water or place—up to certain prescribed maxima—of any matter that consumes oxygen dissolved in water and of suspended solids by:
(a) the owner or operator of a pulp or paper mill: paragraph 6(1)(a) [as am. by SOR/2004-109, s. 2] and section 14 [as am. idem, s. 12; 2008-239, s. 3(E)];
(b) the owner or operator of a facility that treats effluent from a pulp or paper mill and who is specifically so authorized: subsection 6(2) [as am. by SOR/2004-109, s. 2], paragraphs 15(1)(c) [as am. idem, s. 12] and (d) [as am. idem], subsections 16(4) [as am. idem] and 18(1) [as am. idem, s. 14] and section 21;
(c) the owner and operator of a pulp or paper mill that treats waste water in addition to its own effluent, that commenced operations before November 3, 1971, and who is specifically so authorized: paragraphs 6(1)(b) [as am. idem, s. 2] and 15(1)(a) [as am. idem, s. 12], subsections 16(1) [as am. idem] and 18(1) [as am. idem, s. 14] and section 19 [as am. idem, s. 15; 2008-239, s. 5(E)];
(d) the owner or operator of a pulp or paper mill that commenced operations before November 3, 1971, who has since that date treated effluent from the production of dissolving grade sulphite pulp, and who is specifically so authorized: paragraphs 6(1)(b) and 15(1)(b) [as am. idem, s. 4], subsections 16(2) [as am. by SOR/2004-109, s. 12] and 18(1) and section 20 [as am. idem, s. 15; 2008-239, s. 6(E)];
(e) the Port Alberni Mill: sections 33 [as am. by SOR/2004-109, s. 18] and 34 [as am. idem].
There are also numerous conditions set out in the regulations concerning monitoring and reporting.
[137] The Federal Court Judge ruled that section 36 of the Fisheries Act could not be relied on by the Minister for the purposes of a protection statement under section 58 of the SARA. He based this ruling on his conclusion that though this section “prohibits the deposit of a deleterious substance into water frequented by fish [it] allows for the authorization of such deposits through regulation at Cabinet’s discretion”: reasons, at paragraph 325. I am unable to agree with that ruling.
[138] Compliance with subsection 36(3) of the Fisheries Act may not be waived by the Minister through a licence, permit or other authorization, nor may the Minister authorize derogations from the Metal Mining Effluent Regulations or the Pulp and Paper Effluent Regulations. Measures under this section and these regulations are legally enforceable and are not subject to ministerial discretion. This section and the regulations made under it thus provide for compulsory, non-discretionary and legally enforceable measures.
[139] Like most other regulatory provisions, regulations made under section 36 of the Fisheries Act may be adopted or amended from time to time. The fact a statutory provision or a regulatory provision may be eventually modified does not entail that it may not be relied upon by the Minister for the purposes of subsection 58(5) of the SARA. Were it otherwise, the Minister could rely on no statutory or regulatory provision. This is not what subsection 58(5) of the SARA provides. There is a fundamental difference between a non-discretionary and legally enforceable regulation and a discretionary ministerial licensing scheme.
[140] In a given case, the combined operation of section 36 of the Fisheries Act and of the regulations made under that section may afford protection from destruction for critical habitat. Indeed, the limits set out in the Metal Mining Effluent Regulations and the Pulp and Paper Effluent Regulations are legally enforceable and may, in appropriate circumstances, be viewed as protecting critical habitat. Where this is the case, section 36 and its regulations may afford a particular endangered or threatened species the legal protection mandated by section 58 of the SARA. In such appropriate cases, these provisions may be relied upon as ensuring that critical habitat is “legally protected” under section 58 of the SARA. Consequently, in appropriate circumstances, section 36 of the Fisheries Act and its regulations may be relied upon in a protection statement made under paragraph 58(5)(b) of the SARA.
[141] However, in this case, there is no evidence in the record before this Court showing whether the pollution controls set out in these regulations protect from destruction the critical habitat of the concerned killer whale populations. Therefore, there was no basis in these proceedings upon which the Federal Court Judge could have determined whether the Minister’s reliance on section 36 of the Fisheries Act could have been justified in light of the provisions of section 58 of the SARA.
[142] Consequently, to the extent that the Federal Court Judge’s declaration impedes the Minister from relying, in appropriate cases, on section 36 of the Fisheries Act and its regulations for the purposes of a protection statement made under paragraph 58(1)(b) of the SARA, it cannot stand. However, in light of the evidentiary record before us and the nature of these proceedings, we need not decide if the Minister’s reliance on this provision met the requirements of section 58 of the SARA in this case.
The regulation of fisheries
[143] In the Killer Whales Protection Statement, the Minister relied on the existing fishery management scheme adopted under the Fisheries Act. The Minister submits that the existing salmon fishery management scheme offers adequate protection to ensure the availability of salmon prey for the concerned killer whale populations.
[144] In his memorandum, the Minister cites, for this purpose, section 22 of the Fishery (General) Regulations, sections 51 to 60 [s. 58 (as am. by SOR/2010-270, s. 11)] and Schedule VI of the Pacific Fisheries Regulations, 1993, SOR/93-54 and sections 42 to 50 [ss. 45 (as am. by SOR/2001-156, s. 10(E)), 46 (as am. by SOR/2002-380, s. 7(E)), 48 (as am. by SOR/2001-156, s. 11), 49 (as am. by SOR/2002-380, s. 8(E))] and Schedule VI of the British Columbia Sport Fishing Regulations, 1996, SOR/96-137. These regulations, in the Minister’s view, are measures taken under an Act of Parliament which “legally protect” critical habitat within the meaning of section 58 of the SARA.
[145] Section 22 of the Fishery (General) Regulations empowers the Minister to specify, at his discretion, licence conditions for the proper management and control of fisheries and for the conservation and protection of fish. Sections 51 to 60 and Schedule VI of the Pacific Fisheries Regulations, 1993, and sections 42 to 50 and Schedule VI of the British Columbia Sport Fishing Regulations, 1996 respectively outline a management regime for commercial and sports salmon fisheries in Pacific Ocean waters and in British Columbia.
[146] The Minister’s reliance on these regulations is misguided. These regulations do not seek to prohibit the destruction of salmon prey as an element of critical habitat. Rather, they provide the framework for the management of the Pacific salmon fisheries under a highly discretionary ministerial licensing scheme.
[147] Subsection 7(1) of the Fisheries Act gives the Minister “absolute discretion” to issue fishing licences, while paragraph 22(1)(a) of the Fishery (General) Regulations allows the Minister to specify in a licence the quantities of fish that are permitted to be taken. These are very broad discretionary powers: Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548 (C.A.), at paragraph 37.
[148] This Court should not approve the substitution of the non-discretionary and compulsory critical habitat protection scheme of section 58 of the SARA by the discretionary fisheries management scheme established under the Fisheries Act and its regulations.
[149] The protection of critical habitat should not be confused with the management of critical habitat. The SARA calls for both the protection of critical habitat under section 58 and for management measures to ensure the recovery of that habitat through action plans and other methods.
[150] As held in Environmental Defence, critical habitat connotes both a location—in this case the areas identified in the recovery strategy and illustrated in the maps attached to these reasons—and the attributes of that location—in this case the availability of salmon prey in those areas. Section 58 requires that the salmon prey in those identified areas be protected from destruction. SARA also requires that management measures be taken outside those areas to ensure the recovery of that critical habitat, i.e. improving the availability of salmon prey in the areas. These management measures can be provided for in action plans under sections 47 to 54 [s. 49 (as am. by S.C. 2005, c. 2, s. 22)] of the SARA or through licence conditions adopted under section 75 of the SARA.
[151] Though the Minister is justified to pursue management measures to improve salmon prey availability for the concerned killer whale populations, he cannot use these management measures as a substitute for the mandatory protection of such prey within the critical habitat areas identified in the recovery strategy, as required under section 58 of the SARA.
Conclusions
[152] For the reasons set out above, declaration 1(d) found in the judgment of the Federal Court Judge should be upheld save insofar as, for the purposes of section 58 of the SARA, it impedes the Minister from relying, in appropriate cases, on section 36 of the Fisheries Act and the regulations adopted under that section. I would therefore allow this appeal to that extent only, and consequently quash in part declaration 1(d) of the Federal Court’s judgment. Giving the judgment which should have been given, I would therefore replace that declaration with the following:
Ministerial discretion does not legally protect critical habitat within the meaning of section 58 of the Species at Risk Act, and it was unlawful for the Minister to have cited provisions of the Fisheries Act in the Killer Whales Protection Statement where such provisions are subject to ministerial discretion.
[153] The respondents have been largely successful in this appeal. I would therefore award costs to the respondents.
Nadon J.A.: I agree.
Sharlow J.A.: I agree.
APPENDIX A
Pertinent Provisions of the Species at Risk Act, S.C. 2002, c. 29
| Preamble |
Recognizing that Canada’s natural heritage is an integral part of our national identity and history, wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons, Canadian wildlife species and ecosystems are also part of the world’s heritage and the Government of Canada has ratified the United Nations Convention on the Conservation of Biological Diversity, providing legal protection for species at risk will complement existing legislation and will, in part, meet Canada’s commitments under that Convention, the Government of Canada is committed to conserving biological diversity and to the principle that, if there are threats of serious or irreversible damage to a wildlife species, cost-effective measures to prevent the reduction or loss of the species should not be postponed for a lack of full scientific certainty, … knowledge of wildlife species and ecosystems is critical to their conservation, the habitat of species at risk is key to their conservation |
| Definitions |
2. (1) The definitions in this subsection apply in this Act. … |
| “aquatic species” «espèce aquatique » |
“aquatic species” means a wildlife species that is a fish, as defined in section 2 of the Fisheries Act, or a marine plant, as defined in section 47 of that Act. … |
| “competent minister” «ministre compétent » |
“competent minister” means (a) the Minister responsible for the Parks Canada Agency with respect to individuals in or on federal lands administered by that Agency; (b) the Minister of Fisheries and Oceans with respect to aquatic species, other than individuals mentioned in paragraph (a); and (c) the Minister of the Environment with respect to all other individuals. … |
| “critical habitat” «habitat essentiel » |
“critical habitat” means the habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species’ critical habitat in the recovery strategy or in an action plan for the species. … |
| “endangered species” « espèce en voie de disparition » |
“endangered species” means a wildlife species that is facing imminent extirpation or extinction. |
| “extirpated species” « espèce disparue du pays » |
“extirpated species” means a wildlife species that no longer exists in the wild in Canada, but exists elsewhere in the wild. |
| “habitat” « habitat » |
“habitat” means (a) in respect of aquatic species, spawning grounds and nursery, rearing, food supply, migration and any other areas on which aquatic species depend directly or indirectly in order to carry out their life processes, or areas where aquatic species formerly occurred and have the potential to be reintroduced; and (b) in respect of other wildlife species, the area or type of site where an individual or wildlife species naturally occurs or depends on directly or indirectly in order to carry out its life processes or formerly occurred and has the potential to be reintroduced. … |
| “Minister” « ministre » |
“Minister” means the Minister of the Environment. … |
| “residence” « résidence » |
“residence” means a dwelling-place, such as a den, nest or other similar area or place, that is occupied or habitually occupied by one or more individuals during all or part of their life cycles, including breeding, rearing, staging, wintering, feeding or hibernating. … |
| “species at risk” « espèce en péril » |
“species at risk” means an extirpated, endangered or threatened species or a species of special concern. |
| “species of special concern” « espèce préoccupante » |
“species of special concern” means a wildlife species that may become a threatened or an endangered species because of a combination of biological characteristics and identified threats. … |
| “threatened species” « espèce menacée » |
“threatened species” means 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. … |
| “aquatic species”« espèce aquatique » |
“aquatic species” means a wildlife species that is a fish, as defined in section 2 of the Fisheries Act, or a marine plant, as defined in section 47 of that Act. … |
| “competent minister” |
“competent minister” means (a) the Minister responsible for the Parks Canada Agency with respect to individuals in or on federal lands administered by that Agency; (b) the Minister of Fisheries and Oceans with respect to aquatic species, other than individuals mentioned in paragraph (a); and (c) the Minister of the Environment with respect to all other individuals. … |
| “critical habitat” « habitat essentiel » |
“critical habitat” means the habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species’ critical habitat in the recovery strategy or in an action plan for the species. … |
| “endangered species” « espèce en voie de disparition » |
“endangered species” means a wildlife species that is facing imminent extirpation or extinction. |
| “extirpated species” « espèce disparue du pays |
“extirpated species” means a wildlife species that no longer exists in the wild in Canada, but exists elsewhere in the wild. |
| “habitat” « habitat » |
“habitat” means (a) in respect of aquatic species, spawning grounds and nursery, rearing, food supply, migration and any other areas on which aquatic species depend directly or indirectly in order to carry out their life processes, or areas where aquatic species formerly occurred and have the potential to be reintroduced; and (b) in respect of other wildlife species, the area or type of site where an individual or wildlife species naturally occurs or depends on directly or indirectly in order to carry out its life processes or formerly occurred and has the potential to be reintroduced. … |
| “Minister” « ministre » |
“Minister” means the Minister of the Environment. … |
| “residence” « résidence » |
“residence” means a dwelling-place, such as a den, nest or other similar area or place, that is occupied or habitually occupied by one or more individuals during all or part of their life cycles, including breeding, rearing, staging, wintering, feeding or hibernating. … |
| “species at risk” « espèce en péril » |
“species at risk” means an extirpated, endangered or threatened species or a species of special concern. |
| “species of special concern” « espèce préoccupante » |
“species of special concern” means a wildlife species that may become a threatened or an endangered species because of a combination of biological characteristics and identified threats. …
|
| “threatened species” « espèce menacée » |
“threatened species” means 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. … |
| Competent minister |
(3) A reference to a competent minister in any provision of this Act is to be read as a reference to the competent minister in respect of the wildlife species, or the individuals of the wildlife species, to which the provision relates. … |
| Binding on Her Majesty |
5. This Act is binding on Her Majesty in right of Canada or a province. … |
| Purposes |
6. The purposes of this Act are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened. … |
| Responsibility of Minister |
8. (1) The Minister is responsible for the administration of this Act, except in so far as this Act gives responsibility to another minister. … |
| Conservation agreements — species at risk |
11. (1) A competent minister may, after consultation with every other competent minister, and with the Canadian Endangered Species Conservation Council or any of its members if he or she considers it appropriate to do so, enter into a conservation agreement with any government in Canada, organization or person to benefit a species at risk or enhance its survival in the wild. |
| Contents |
(2) The agreement must provide for the taking of conservation measures and any other measures consistent with the purposes of this Act, and may include measures with respect to (a) monitoring the status of the species; (b) developing and implementing education and public awareness programs; (c) developing and implementing recovery strategies, action plans and management plans; (d) protecting the species’ habitat, including its critical habitat; or (e) undertaking research projects in support of recovery efforts for the species. … Killing, harming, etc., listed wildlife species |
| 32. (1) No person shall kill, harm, harass, capture or take an individual of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species. |
|
| Possession, collection, etc. |
(2) No person shall possess, collect, buy, sell or trade an individual of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species, or any part or derivative of such an individual. |
| Deeming |
(3) For the purposes of subsection (2), any animal, plant or thing that is represented to be an individual, or a part or derivative of an individual, of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species is deemed, in the absence of evidence to the contrary, to be such an individual or a part or derivative of such an individual. |
| Damage or destruction of residence |
33. No person shall damage or destroy the residence of one or more individuals of a wildlife species that is listed as an endangered species or a threatened species, or that is listed as an extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada. … |
| Preparation — endangered or threatened species |
37. (1) If a wildlife species is listed as an extirpated species, an endangered species or a threatened species, the competent minister must prepare a strategy for its recovery. … |
| Commitments to be considered |
38. In preparing a recovery strategy, action plan or management plan, the competent minister must consider the commitment of the Government of Canada to conserving biological diversity and to the principle that, if there are threats of serious or irreversible damage to the listed wildlife species, cost-effective measures to prevent the reduction or loss of the species should not be postponed for a lack of full scientific certainty. … |
| Contents if recovery feasible |
41. (1) If the competent minister determines that the recovery of the listed wildlife species is feasible, the recovery strategy must address the threats to the survival of the species identified by COSEWIC, including any loss of habitat, and must include (a) a description of the species and its needs that is consistent with information provided by COSEWIC; (b) an identification of the threats to the survival of the species and threats to its habitat that is consistent with information provided by COSEWIC and a description of the broad strategy to be taken to address those threats; (c) an identification of the species’ critical habitat, to the extent possible, based on the best available information, including the information provided by COSEWIC, and examples of activities that are likely to result in its destruction; (c.1) a schedule of studies to identify critical habitat, where available information is inadequate; (d) a statement of the population and distribution objectives that will assist the recovery and survival of the species, and a general description of the research and management activities needed to meet those objectives; (e) any other matters that are prescribed by the regulations; (f) a statement about whether additional information is required about the species; and (g) a statement of when one or more action plans in relation to the recovery strategy will be completed. … |
| Proposed recovery strategy |
42. (1) Subject to subsection (2), the competent minister must include a proposed recovery strategy in the public registry within one year after the wildlife species is listed, in the case of a wildlife species listed as an endangered species, and within two years after the species is listed, in the case of a wildlife species listed as a threatened species or an extirpated species. |
| First listed wildlife species |
(2) With respect to wildlife species that are set out in Schedule 1 on the day section 27 comes into force, the competent minister must include a proposed recovery strategy in the public registry within three years after that day, in the case of a wildlife species listed as an endangered species, and within four years after that day, in the case of a wildlife species listed as a threatened species or an extirpated species. |
| Comments |
43. (1) Within 60 days after the proposed recovery strategy is included in the public registry, any person may file written comments with the competent minister. |
| Finalization of recovery strategy |
(2) Within 30 days after the expiry of the period referred to in subsection (1), the competent minister must consider any comments received, make any changes to the proposed recovery strategy that he or she considers appropriate and finalize the recovery strategy by including a copy of it in the public registry. … |
| Reporting |
46. The competent minister must report on the implementation of the recovery strategy, and the progress towards meeting its objectives, within five years after it is included in the public registry and in every subsequent five-year period, until its objectives have been achieved or the species’ recovery is no longer feasible. The report must be included in the public registry. Action Plan |
| Preparation |
47. The competent minister in respect of a recovery strategy must prepare one or more action plans based on the recovery strategy. If there is more than one competent minister with respect to the recovery strategy, they may prepare the action plan or plans together. … |
| Contents |
49. (1) An action plan must include, with respect to the area to which the action plan relates, (a) an identification of the species’ critical habitat, to the extent possible, based on the best available information and consistent with the recovery strategy, and examples of activities that are likely to result in its destruction; (b) a statement of the measures that are proposed to be taken to protect the species’ critical habitat, including the entering into of agreements under section 11; (c) an identification of any portions of the species’ critical habitat that have not been protected; (d) a statement of the measures that are to be taken to implement the recovery strategy, including those that address the threats to the species and those that help to achieve the population and distribution objectives, as well as an indication as to when these measures are to take place; (d.1) the methods to be used to monitor the recovery of the species and its long-term viability; (e) an evaluation of the socio-economic costs of the action plan and the benefits to be derived from its implementation; and (f) any other matters that are prescribed by the regulations. … |
| Monitoring and reporting |
55. The competent minister must monitor the implementation of an action plan and the progress towards meeting its objectives and assess and report on its implementation and its ecological and socio-economic impacts five years after the plan comes into effect. A copy of the report must be included in the public registry. … |
| Purpose |
57. The purpose of section 58 is to ensure that, within 180 days after the recovery strategy or action plan that identified the critical habitat referred to in subsection 58(1) is included in the public registry, all of the critical habitat is protected by (a) provisions in, or measures under, this or any other Act of Parliament, including agreements under section 11; or (b) the application of subsection 58(1). |
| Destruction of critical habitat |
58. (1) Subject to this section, no person shall destroy any part of the critical habitat of any listed endangered species or of any listed threatened species — or of any listed extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada — if (a) the critical habitat is on federal land, in the exclusive economic zone of Canada or on the continental shelf of Canada; (b) the listed species is an aquatic species; or (c) the listed species is a species of migratory birds protected by the Migratory Birds Convention Act, 1994. |
| Protected areas |
(2) If the critical habitat or a portion of the critical habitat is in a national park of Canada named and described in Schedule 1 to the Canada National Parks Act, a marine protected area under the Oceans Act, a migratory bird sanctuary under the Migratory Birds Convention Act, 1994 or a national wildlife area under the Canada Wildlife Act, the competent Minister must, within 90 days after the recovery strategy or action plan that identified the critical habitat is included in the public registry, publish in the Canada Gazette a description of the critical habitat or portion that is in that park, area or sanctuary. |
| Application |
(3) If subsection (2) applies, subsection (1) applies to the critical habitat or the portion of the critical habitat described in the Canada Gazette under subsection (2) 90 days after the description is published in the Canada Gazette. |
| Application |
(4) If all of the critical habitat or any portion of the critical habitat is not in a place referred to in subsection (2), subsection (1) applies in respect of the critical habitat or portion of the critical habitat, as the case may be, specified in an order made by the competent minister. |
| Obligation to make order or statement |
(5) Within 180 days after the recovery strategy or action plan that identified the critical habitat is included in the public registry, the competent minister must, after consultation with every other competent minister, with respect to all of the critical habitat or any portion of the critical habitat that is not in a place referred to in subsection (2), (a) make the order referred to in subsection (4) if the critical habitat or any portion of the critical habitat is not legally protected by provisions in, or measures under, this or any other Act of Parliament, including agreements under section 11; or (b) if the competent minister does not make the order, he or she must include in the public registry a statement setting out how the critical habitat or portions of it, as the case may be, are legally protected. … |
| Powers of competent minister |
73. (1) The competent minister may enter into an agreement with a person, or issue a permit to a person, authorizing the person to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals. |
| Purpose |
(2) The agreement may be entered into, or the permit issued, only if the competent minister is of the opinion that (a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons; (b) the activity benefits the species or is required to enhance its chance of survival in the wild; or (c) affecting the species is incidental to the carrying out of the activity. |
| Pre-conditions |
(3) The agreement may be entered into, or the permit issued, only if the competent minister is of the opinion that (a) all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted; (b) all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals; and (c) the activity will not jeopardize the survival or recovery of the species. |
| Explanation in public registry |
(3.1) If an agreement is entered into or a permit is issued, the competent minister must include in the public registry an explanation of why it was entered into or issued, taking into account the matters referred to in paragraphs (3)(a), (b) and (c). … |
| Terms and conditions |
(6) The agreement or permit must contain any terms and conditions governing the activity that the competent minister considers necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery. |
| Review of agreements and permits |
(7) The competent minister must review the agreement or permit if an emergency order is made with respect to the species. |
| Amendments of agreements and permits |
(8) The competent minister may revoke or amend an agreement or a permit to ensure the survival or recovery of a species. |
| Maximum term |
(9) No agreement may be entered into for a term longer than five years and no permit may be issued for a term longer than three years. … |
| Competent minister acting under other Acts |
74. An agreement, permit, licence, order or other similar document authorizing a person or organization to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals that is entered into, issued or made by the competent minister under another Act of Parliament has the same effect as an agreement or permit under subsection 73(1) if (a) before it is entered into, issued or made, the competent minister is of the opinion that the requirements of subsections 73(2) to (6) and (9) are met; and (b) after it is entered into, issued or made, the competent minister complies with the requirements of subsection 73(7). |
| Adding terms and conditions |
75. (1) A competent minister may add terms and conditions to protect a listed wildlife species, any part of its critical habitat or the residences of its individuals to any agreement, permit, licence, order or other similar document authorizing a person to engage in an activity affecting the species, any part of its critical habitat or the residences of its individuals that is entered into, issued or made by the competent minister under another Act of Parliament. |
| Amending terms and conditions |
(2) A competent minister may also revoke or amend any term or condition in any of those documents to protect a listed wildlife species, any part of its critical habitat or the residences of its individuals. |
| Treaties and land claims agreements |
(3) The competent minister must take into account any applicable provisions of treaty and land claims agreements when carrying out his or her powers under this section. … |
| Licences, permits, etc., under other Acts of Parliament |
77. (1) Despite any other Act of Parliament, any person or body, other than a competent minister, authorized under any Act of Parliament, other than this Act, to issue or approve a licence, a permit or any other authorization that authorizes an activity that may result in the destruction of any part of the critical habitat of a listed wildlife species may enter into, issue, approve or make the authorization only if the person or body has consulted with the competent minister, has considered the impact on the species’ critical habitat and is of the opinion that (a) all reasonable alternatives to the activity that would reduce the impact on the species’ critical habitat have been considered and the best solution has been adopted; and (b) all feasible measures will be taken to minimize the impact of the activity on the species’ critical habitat. |
| Application of section 58 |
(2) For greater certainty, section 58 applies even though a licence, a permit or any other authorization has been issued in accordance with subsection (1). … |
| General exception |
83. (1) Subsections 32(1) and (2), section 33, subsections 36(1), 58(1), 60(1) and 61(1), regulations made under section 53, 59 or 71 and emergency orders do not apply to a person who is engaging in (a) activities related to public safety, health or national security, that are authorized by or under any other Act of Parliament or activities under the Health of Animals Act and the Plant Protection Act for the health of animals and plants; or (b) activities authorized under section 73, 74 or 78 by an agreement, permit, licence, order or similar document. |
| Authorization of activities under other Acts |
(2) A power under an Act described in paragraph (1)(a) may be used to authorize an activity prohibited by subsection 32(1) or (2), section 33, subsection 36(1), 58(1), 60(1) or 61(1), a regulation made under section 53, 59 or 71 or an emergency order only if the person exercising the power (a) determines that the activity is necessary for the protection of public safety, health, including animal and plant health, or national security; and (b) respects the purposes of this Act to the greatest extent possible. |
| Exceptions — land claims agreements |
(3) Subsections 32(1) and (2), section 33, subsections 36(1), 58(1), 60(1) and 61(1) and regulations made under section 53, 59 or 71 do not apply to a person who is engaging in activities in accordance with conservation measures for wildlife species under a land claims agreement. |
| Exemptions for permitted activities |
(4) Subsections 32(1) and (2), section 33 and subsections 36(1), 58(1), 60(1) and 61(1) do not apply to a person who is engaging in activities that are permitted by a recovery strategy, an action plan or a management plan and who is also authorized under an Act of Parliament to engage in that activity, including a regulation made under section 53, 59 or 71. […] |
SCHEDULE 1
(Subsections 2(1), 42(2) and 68(2))
LIST OF WILDLIFE SPECIES AT RISK
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PART 2
ENDANGERED SPECIES
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Whale, Killer (Orcinus orca) Northeast Pacific southern resident population
Épaulard population résidente du sud du Pacifique Nord-Est
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PART 3
THREATENED SPECIES
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Whale, Killer (Orcinus orca) Northeast Pacific northern resident population
Épaulard population résidente du nord du Pacifique Nord-Est
APPENDIX B
MAP OF CRITICAL HABITAT FOR SOUTHERN RESIDENT KILLER WHALES
APPENDIX C
MAP OF CRITICAL HABITAT FOR NORTHERN RESIDENT KILLER WHALES